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Robert  E.  Gross 
Colle£tion 

A  Memorial  to  the  Founder 
of  the 


^cMeeJ SS.t'rcya^^  lyor/tora/eon 


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Business  Administration  Library 
Los  Angeles 


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Robert  E.  Gross 
Collection 

A  Memorial  to  the  Founder 
of  the 

Jzf>cAn€e</ SS.frcf^/f/  ^or/iot^/eon 


Business  Administration  Library 

unirefiilii  <^  (yauMi'-nia' 
Los  Angeles 


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COMPLETE    DIGEST 


O    F 


THE 


Cfieorp.  I»ato0,  and  jBrattite 


O    F 


I   N    S  U 


A  N 


Compiled  from  the   belt    AUTHORITIES    in    difierent    Lahguages^ 

which    are   quoted     and    referred    to    ihrou^hoid    the    Work;      and    arriiii^ed 

IN     ALPHABETICAL      ORDER, 

Under   many  JekB    HEADS,  with   ample   REFERENCES,    and   a  general   INDEX; 
affording  immediaie  and  full   Information,  en  every  diJIiuB  Matter,  Oueflion,    or   Point. 


C      O      N      T     A 

S.     The  PRINCTPLES,  DOCTRINES,  anj   USAGES, 

touching  all  mmteis  of  Infiffance. 

II.  All  the  CASES  of  Infmance  that  have  been 
ADJUDGED  in  our  Conns  ot  Law  and  Equity,  colle6l. 
cd  from  tlie  numerous  Reports,  and  other  law  books 
extant,  down  to  the  prefent  time; — with  fevcral  others 
which  have  never  before  been  printed; — and  fonie 
material  Cafes  adjudged  in  foreign  Courts. 

III.  E-vtrafts  from  all  the  sTATU'Tts  relating  toln- 
furjnce,  and  matters  immediately  conncfled  therewith. 

IV.  The  nioft  ufefid  Articles  of  all  the  forkigm 
OKDiN.\NC£S  and  REGULATIONS  upon  this  fubjcft. 

V.  Extrafls  from  treati  es  of  commerce,  &c. 
with  regard  to  Freedom  ot  Navigation,  Contraband, 
Neutral  Ships  and  Property,   War,  &.c. 

VI.  The  refpefcfive  Kigiits  and  Duties  of  insu- 
rers,   INSUREDS,    BROKERS,    AGENTS,    OWNERS, 

FREIGHTERS,    MASTERS    of  Ships,    &c.     as    rela- 
tive to  matters  ol  Infurance. 

VII.  Tlie  Nature,  Objcil,  and  feleft  Forms  of 
POLICIES    of   Infurance,    Bottomry  diwd  llefpond<iUia 


I    N    I    N    G 

BONDS  ; — the  irue  conflmflion  nnj  opcrjiiuii  of  tTieir 
feveral  Terms  and  Clav.fes;  with  Cautions  and  Remarks 
concerning  zvritten  claufes. 

VIII.  Rules  intcrfperfed  throughout,  for  guarding 
againlf,  and  dete£}ing  fraud  and  impc>sition. 

IX.  The  curious  0_wjiion  dircnd'ed,  with  regard  to 
the  advantage,  difadvaniage,  and  legality,  o{  infunng 
the  Ships  and  Property  of  enemies;  with  new  and 
interefting  Obftrvations  thereon. 

X.  Accounts  of  the  feveral  companies  &  soci- 
eties in  England,  lor  Infurance;  their  Plans,  Terms, 
Sic.  with  critical  and  uleful  Rcmaris : — alfo  ol  the 
CH,\MiiERS  of  assurance  abroad  ;  their  Regula- 
tions, .Authority,  and  fummary  Modes  of  Decifion. 

XI.  Concerning  the  maritime  and  other  COURTS; 
— the  maritime  laws; — the  LAW  of  nations; — 
the  LAWS  of  England; — the  lex  mercatoria; 
— alfo  Trials,  V'erdiBs,  and  Arbitrations  ;  with  regard 
to  Infurance. 

XII.  Various  new  matters,  Rules,  Ca/cs, 
Methods,  and  Remarks,  not  in  any  other  Book. 


W    I    T    ti 


A     PRELIMINARY     D  I  S  C  0  U  R  S  E; 

Wherein   ai<?  dtlineaicd   the    very,  great    DISORDERS    which    prevail    in  Affairs    of  Infurance; 
their  piincipal  causks  explained;     and  methods  pvopofed  for  better  rf.oulation   and  prevention. 


By 

JOHN      W  E  S  K  E  T  T,      Merchant. 

Ex  Eiinio  dare  Liican.       Hor. 

I.  0  K  i>  0  N :      Printed     b  v     F  R  Y  S,     C  O  U  C  H  M  A  N,     &     COLLIER: 

And    Solo    by    RICHARDSON    &    URQUHART,    Royai.-Ejccbance  ;     J.  SEWELL.    Cor.nhill; 
WIIIELDOM  &  WALLER,   J^'leet-Street  ;     and  W.  FLEXNEY,    HolboL. 

M  D  CC   L  X  .K  X  I.  \ 


T    O 


HIS     ROYAL     HIGHNESS 


E        0        R 


E, 


PRINCE      OF      WALES. 


SIR, 

CO  M  M  E  R  C  E, — to  which  this  nation  owes  It's  eminent 
rank  of  power  and  fplendour,  and  upon  the  proteftion  of 
which,  efpecially  in  the  prefent  dangerous  conjunfture,  even  it's 
exiftence  depends, — is  amongft  the  moft  material  objefts,  if  it 
be  not  aftually  the  moft  important,  that  can  engage  the  attention 
of  an  Illustrious  Prince,  apparently  deftined  to  fway  the 
fceptre  of  the  Britifh  Empire. 

From  a  tranfient  view  of  the  various  matters  Vx^hlch  relate  to 
the  fubjeft  of  the  following  fheets,  Your  Royal  Highness 
will  difcern  it  to  be  fo  intimately  conne6led,  and  clofely  inter- 
woven with  every  circumftance  of  mercantile  and  maritime 
afiFairs,  that,  in  proportion  as  a  due  regard  fhould  be  wanting 
to  the  true  principles,  and  juft  praftice  of  infurance,  commerce, 
of  which  it  is  the  main  fupport,  would  neceffarily  decay,  and 
finally  perifh. 

To  obviate,  in  a  confiderable  degree,  efFe£ls  of  fo  fatal  a 
tendency  to  the  effential  interefts  of  the  community,  as  well  as 
of  great  numbers  of  it's  refpeftable  and  moft  ufefid  members,  of 
divers  clalTes,  by  an  ample  elucidation  of  thofe  principles,  and 
the  proper  means  of  eftablifliing  the  pra6lice  of  them,  was  the 
genuine  motive  to  a  new  and  arduous  undertaking,  which  is,  in 
it's  nature,  of  very  ferious  concern  to  the  creneral  welfare. 

•  o 

Some 


DEDICATION. 

Some  of  the  heads  of  it,  m  particular,  treat  of  matters  of 
highly  national  import;  fuch  as  Admiralty,  Civil  Law,  Colony, 
Contraband,  Embargo,  Enemy,  Flag,  Freedom  of  Navioation, 
Law,  Law  of  Nations,  Maritime  Law,  Navigation  &  Navigation- 
Aft,  Pveprifal,  Sea,  Sliip,  7Yeaty,  War;  and  may,  thsj-efore, 
occalionally  attraft  Your  Royal  Highness's  notice,  and  lead 
to  larger  fpeculations  on  the  like  topicks. 

Your  augufi:  progenitors,  Sir,  have  ever  made  the  public 
good  their  chief  regard;  and  approved  themfelves  the  friends 
of  fcicnce,  the  benign  patrons  of  produ6lions  calculated  to 
advance  the  Ikfety,  the  profperity,  and  the  honour  of  our 
country. 

To  Your  Royal  Highness,  equally  inheritor  of  their 
virtu'es  as  heir  to  their  throne,  this  work  is,  therefore, 

With  the  profoundefl;  Veneration, 

DEDICATED,    by 

YOUR    ROYAL    HIGHNESSES 


MioPi  luimble, 
mofl  obedient, 

and  devoted  Servant, 

JOHN     W  E  S  K  E  T  T. 


R       E       F      A      C       E. 


"T^HEfpirit  of  traffic  never  pojfejfed  all  nations,  in  any  age,  mdrejlrongly  than 
theprefen  t :  modern  politicians  place  the  happinefs  of  a  people  in  thefourifiing 
flate  of  their  trade ;    and  public  affairs  are  combined  upon  that  principle.     In 
Jhort,  trade  is  the  phjeEl  of  our  xoarsf'—But,  maritime  commerce,  tohile  it  produces 
the  niofi  copious  and  diffufve  benefits,  is  alfo  continually  liable  to  innumerable 
accidents  and  unfortunate  events  ;  xohich  have,  at  all  times,  rendered  Infurance 
indifpcnfably  neccffary :  and  this  contraEt,  operating  according  to  the  nature  and 
various  circumfances  of  thofe  cafualiies,  is,  of  all  tranfictions  among  mankind, 
the  mojl  abundant  four  ce  of  difputes  and  perplexities,  where  the  principles  of  Infu- 
rance are  not  xoell  and  generally  underfiood,  and  it's  practice  duly  regulated. 
— To    effed    thefe   purpofes,    is  therefore    of  the  utmojl  confequence  to   every 
commercial  nation. 

It  was,  however,  with  equal  regret  andfurprife,  the  author  of  the  following  work, 
and  fever al  attentive  perfons  obferved,  during  the  late  zoar  with  France  and  Spain, 
that  in  this  his  native  country,  where  navigation,  commerce,  and  the  bufinefs  of 
Irfurance,  were  carried  to  a  much  greater  extent  than  in  any  other,  the  pradice  of 
the  latter  had  fcdlen  into  a  fate  of  great  irregularity,  error,  and  fraud:  which 
have  unhappily  continued;  and  which,  in  the  prefent  complicate  and  perilous  war, 
more  than  ever  reign,  without  any  adequate  check  or  control ;  to  the  certain  detri- 
ment, ultimately,  of  all  parties,  and  a  perpetual  increafe  of  litigations,  already 
beyond  all  experience  numerous  and  mutually  dcfiruclive. 

Fully  convinced  that  thefe  enormous  evils  originate,  chiefiy,from  an  almof  general 
defect  of  acquaintance  with  the  principles  and  dodrines,  by  xohich  the  affairs  of 
Infurance  ought  to  be  conduded ;  oxoing  to  the  total  want  of  proper  means  of 
attaining  it;  he  refolved,  at  theclofe  of  the  lafl  war,  to  enter  upon  a  full  invefiga- 
tion,  and  to  form  as  complete  a  Digeft  of  the  Theory,  the  Laws,  and  the  Pradice  of 
Irfurance,  as  hefhould  be  able ;  in  the  view  offurnifiing  to  the  public  more  ample 
and  fatisfadory  information  upon  thefe  matters,  and  in  a  more  familiar  and 
pradical  manner,  than  has  hitherto  any  xohere  appeared. — To  this  end,  he  has  ever 
fince  employed  an  unwearied  attention  and  affiduily,  accompanied  xoith  continual 
experience  and  refiedion ;  and  has  confiantly  direded  his  rcfearches  xoherefoever 
the  proper  materials  could  be  obtained,  abroad  as  well  as  at  home,  from  the  mofi 
efteemed  books,  and  the  mofi  enlightened  men  ;  nor  has  he  let  any  opportunity,  or 
any  means  efcape,  that  xoere  in,  his  poxoer,  of  acquiring  a  thorough  knoivledge  of 
zohatever  relates  to  thefubjed,  at  large. 

a  In 


11 


E      F     A      C      E. 


In  the  Frdiminary  Difcourfe,  publijlicd  above  a  year  before^  the  Digejl,  are 
fpccifically  delineated  the  various  diforders  xvhich  daily  prevail  in  tranfaElions 
of  Injur ance,  uith  their  pernicious  covfcquences ;  the  principal  caufes  of  thofe 
di/orders  are  explained;  and  the  outlines  given  of  eligible  methods  for  better 
regulation  and  prevention.— The  plan,  the  execution,  and  the  utility  of  the  Digef, 
arc  Ukexoife  diJlinElly  fct  forth  in  that  introduclion :  a  previous  pcrifal  of  which 
xoill  greatly  facilitate,  efpecially  to  men  of  pratlical  bufinefs,  the  proper  compre- 
licnfon  and  ufe  of  the  xchole. 

The  author  is  happy  in  having  been  honoured  xoith  many  fpontaneous  tejiimonies 

oj  cordial  reception  of  the  preliminary  publication,  from  fever  al  of  the  mof  refpeEl- 

able  and  judicious  merchants,  infurcrs,  and  others,  both  in  foreign  parts  and  in 

England ;    fome  of  xohom  have  alfo  favoured  him  (agreeably  to  his  general 

invitation  at  the  conclufion  of  it)  xoith  ftxndry  material  communications  and 

hints,  of  xchich  he  has  endeavoured,  xoith  due  regard,  to  make  afuitable  ufe. — He 

oxoes  the  mojl  refpedful  acknoxolcdgmcnts  for  the  eafy  accefs  xchich  has  been  granted 

him  to  fome  of  our  public  libraries  ;  efpecially  the  large  ayid  valuable  colleElion  of 

ancient  and  modern  learning,  in  Doclors-Commons,  upon  the  Jus  Gentium,  Jus 

Maritiinum  &  Nauticum,  the  Lex  Mercatoria,  and  other  commercial  and  marine 

fubjeEls,  entirely  adapted  to  his  purpofe. — His  thanks  are  no  lefs  due  to  fome 

gentlemen  eminent  in  the  laxo,  of  as  liberal  fentiments  as  extenfve  learning  ;    to 

our  principal  laxo  bookfellers  and  others ;    and  to  many  of  his  particular  and 

experienced  friends ;  for  the  great  readinefs  and  civility  xoith  xchich  they  have, 

from  time  to  time,  anfxoered  his  enquiries,  and  fup plied  hmi  xoith  fuck  books,  papers, 

and  informations,  as  have  greatly  contributed  to  the  progrefs  and  improvement 

of  his  undertaking. 

Several  of  the  books  in  foreign  languages,  mentioned  in  the  annexed  lifl,  are  in 
great  cjlccm  and  ufe  among  intelligent  and  prudent  merchants  abroad,  as  xjoell  as 
among  lawyers  ;  and  contain  divers  very  intercjling  matters  exprefsly  on  thefubjeCl 
of  hfurance ;  although  they  are  but  little  knoxvn,  and  fome  of  them  not  to  be  met 
xvith,  in  England.  Yet,  quejlions  upon  policies  of  hfurance  ought  to  be  decided  by 
the  large  principles  of  the  Maritime  Law  ;  xjohich  is  not  the  laco  of  a  particular 
country,  but  the  general  laxv  of  nations:  non  erit  alia  lex  Roma:,  alia  Athenis, 
alia  nunc,  alia  pofthac  ;  fed  apud  omnes  gentes,  ct  omni  tempori,  una  eadem- 
quc  kx  obtinebit:*-/or,  from  the  fame  prejivifes,  the  found  conclufions  of  reafon 
.  and  jiifice  mujl  univerfally  be  the  fame. 

*     Vide  title,  Frei<^ht,  p.  8^8. 


LIST 


L 


1 


O 


The    principal     AUTHORITIES     confuked     and 
quoted    in    the    Courfe    of    this    Work. 


Abridgment  {general)  ofCaJa  inEqmly. 

AiTZEMA  Of  State  AJJairs,  and  of  War. 

Anderson's  Chronohgical  DcduHion  oj  Com- 
merce. 

Bacon's  Abridgment  of  iJie  Law. 

Baldwin's  Survey  of  the  Britfh  Cuftoms. 

Beauwes's  Lex  Mercatoria  rcdiviva. 

Be L  LU s ( Pctrinus)  De Pojllminii  Jure revcrfis. 

Blackstone's  Com7nentaries  on  the  Laws  of 
England. 

Bollard  Differ tatio  de  Affecuratione. 

Borough's  Sovereignly  of  the  Britifli  Seas. 

Brooke's  Abridgment  of  the  Law. 

Buller's  Introduction  to  the  Law  relative  to 
Trials  at  Nifi  Prius. 

Burlamaqui's    Principles   of  Natural   and 
Politic  Law. 

Bynkershoek  Obfcrvationes  Juris  Civilis. 

Quacjliones  Juris  Puilici. 

"■  Quafliones  Juris  Privati. 

Cantillon's  Analyfs  of  Commerce,  ^c. 
Gary's  EJfay  on  Trade. 
Casa  Regis  Opera  omnia  de  Commercio. 
Cay's  Abridgment  of  the  Statutes. 
Chambers's  DiElionary  of  Arts  and  Sciences. 
Child's  (Sir  Jofiah)  Difccurfe  en  Trade. 
Clark's  Praclice  of  the  Court  of  Admiralty. 
Clark's  Epitome  of  the  Cormnon  Law. 
Cleirac's  Guidon  de  la  Mer. 

Jurifdiclion  de  la  Marine. 

Coke's  Inflitutes. 
•  Commentary  upon  Littleton. 

Collection  of  all  the  Marine  Treaties  between 
Great-Britain,  (3c.  (See  Title,  Treaty). 
Complete  Arbitrator. 

CoMYNs'  Digejl  of  the  Laws  of  England. 
Confolalo  del  Mare. 

Cunningham's  Law  Dictionary. 

-— Merchant's  Lazoyer. 

Law  of  Infurances,  &c. 

Daven  ant's  Political  and  Commercial  Works. 

De  Foe's  Works. 

D  E  M  o  I V  r  E  's  Valuation  of  Lives,  Annuities,  &c. 

Den  IS  art's  ColleBion  de  Decifions  nouvdles. 


De  Witt's  (Penfionary)  Letters. 
Diclionnaire  du  Citoyen. 
Digcjl  of  Adjudged  Cafes  in  the  King's-Btnch, 
from  the  Revolution  to  theprefent  Period. 
Dodso.n's  Mathematical  Repofitory. 
Domat's  Loix  Civiles. 
Du  Fresne's  Gloffarium. 
Du  Moulin  De  Ufuris. 
Encyckpedie. 

Falconer's  UniverfalDiBionary  of  the  Marine. 
Ferretus  De  Jure  (3  Re  Navali. 
Ferriere's  Didionnaire. 
Finch's  Law. 
Florio's  Dizionano. 
Furetier's  Diclionnaire  Univcrfel. 
Gee's  Trade  &  Navigation  of  Great-Britain. 
General  Treatifc  of  Naval  Trade  and  Commerce. 
Gentilis  (Albcricus)  Qucefiiones  Maritimce. 
Gilbert's  Civil  Actions  in  the  Common  Picas. 
I  Gilbert's  Law  of  Evidence. 

Glin  (Taco  Van)  Over  de  Zee  Rechten. 

Godolphin's  Admiralty  JurifdiElion. 

GreeneweCtEN  De  Legibus  abrogatis  et  invfi- 
tatis  in  Hollandia,  vicinifque  Regionibus. 

G.ROTius  De  Jure  Belli  ac  Pacts. 

—Mare  Liberum. 

Hale's  Pleas  of  the  Crown. 

HeIneccius  Opufculorum variorum Syllog. 

Elementa  Juris  Civilis.^ 

HuBN  ER  Dela  Saifie  des  Batimens  Ntidres. 

Jacob's  Law  DiBionary. 

Jenkins'  (Sir  Leonine)  Memoirs. 

Johnson's  (Dr.  Sam.)  DiHionary. 

Journal  de  Commerce. 

Kaims*  {]-.oxd)  Principles  of  Equity. 

King's  Britifli  Merchant. 

KippAx's  Theory  and  Practice  of  Commerce, 
and  Maritime  Affairs. 

KuRicKE  Ad  Jus  Hanfeaticum,  cum  Notis,  (3 
Diatriba  de  AJfecurationibus. 

Lambard's  Archaionomia. 

Langenbeck  Op  deSchip  6?  ZeeRechten:  On 

Marine  Laws  &  Infurances. 
Lilly's  Modern  Entries. 

LOCCENIUS 


IV 


LIST     OF     AUTHORITIES. 


Maritime  Laws, 


LoccENius  De  Jure  Maritimo  (3  Navali. 

Mag  ens'  Ufay  rni  Injurances. 

Malynes'  Cuiifueludo  vel  Lex  Mercatoria. 

Rhodian,  Raman,  Oleron, 
Wijlniy,  Hanfe  Towns. 

MarquardusD?  Jure  Commerciorum,  ^c. 

Meier  Dc  AJfecuratimibus  Mercatorum. 

Mercure  de  France. 

M 1 N  sn  E  u 's  DiBionary. 

MoLiNus  (Lud.)  De  Jufiilia'in  Dijpulaiione. 

MoLLOY  De  Jure  Maritimo  et  Navali. 

Montesquieu's  Ejprit  des  Loix. 

Morgan's   DoBrine  of  Annuities  and  Inju- 
rances on  Lives. 

Mo  rt  I M  E  r's  DiBionaryofTradeaniCommerce. 

Elements  of  Cominerce,  &c. 

Ordinances  (foreign)  (See  Title,  Ordinance). 

Parker's  Laws  of  Shipping  and  Infurance. 

Peckius  Ad  Rem  Nauticain. 

Pereira  da  Castro  Decifiones. 

Postlethwaite's  Univerfal    DiBionary    of 
Trade  and  Commerce. 

. Dllfcrtations  on  the  Commer- 
cial Inter efl  of  Great-Britain. 

Price's    (Dr.)    Objervations  on  Reverfionary 
Payments,  Injurances  on  Lives,  iSc. 

PuFFENDORFF  Dc  Jurc  NatuTcE  ^  Gcutium. 

Rccopilation  de  las  Leyes  de  las  Indias. 

Reports  *  of  Cafes  adjudged  in  our  Courts  of  Law 
and  Equity,  and  in  Parliament  (See 
Title,  Cajes  Adjudged). 

Ricard's  Negoce  d'Am/lerdam. 

Ricard's  Traite  general  de  Commerce. 

Roccus  t  De  Navibus  et  Naulo,  item  de  AJfc- 
curalionibus,  Nolabilia. 

RoLLz's  Abridgment  of  Cafes  and  Rcjolutions 
of  Law. 

Rolt's  DiBionary  of  Trade  and  Comm,erce. 

Ru F  F  I!  e  ad's  Index  to  the  Statutes  at  large. 

R  utherforth's  Inflitutes  of  Natural  Law. 


Santerna  TraBatus  de  Affecurationihus. 
S AV A  ry's  Dictionnaire  univerfel  de  Commmerct. 
Savary's  Parfait  Negociant. 
ScAcciA  De  Commerciis  i3  Cambio. 
Scriptorum  de  Jure  Nauiico  &  Maritimo  Faf- 

ciculiis. 
Selden  Mare  Claufum,feu  de Dominio  Maris. 
SuuBACK  Commentarius  de  Jure  Littoris. 
Simpson's  SeleB  Exercifes  on  Annuities  &c. 
Spelman's  (Sir  Hen.)  Gloffary. 
Stath  am's  Abridgment  of  the  ancient  Law, 
Statutes  at  large  (See  Title,  Statutes). 
Statutes  of  Lubcck. 

Straccha  De  Mercatura,  (3  Affecurationihus. 
Stypmannus  De  Jure  Naulico  (3  Maritimo. 
Targa  (Carlo)  Ponderazioni  fopra  leContrat- 

tazioni  Maritime. 
Temple's  (Sir  William)  Letters. 
Treat  fe  of  Equity. 
Tremaine's  Pleas  of  the  Crown. 
Trevoux's  DiBionnaire  univerfel. 
Us  ^  Coutumes  de  la  Mer. 
V  A  L I N  's  Nouveau  Commentaire  fur  I'Ordonnancc 

de  la  Marine  du  Mois  d'Aout  i68i. 

Traite  des  Prifes. 

Verwer  Over  de  Zee  Rechten:    On  Marine 

Laws  and  Bottomry. 
Vine  r's  General  Abridgment   of  Law     and 

Equity. 
ViNNius  Inflitutionum  Imperialium  Commenta- 
rius, cura  Heineccii. 

Commentarii  in  Peckium. 
Welwood's  Abridgment  of  all  Sea-Laws. 
Weytsen  (Q.  Van)  Treat  fe  of  Averages, 
Wiseman's  (Sir  Rob.)  Law  of  Laws. 
Wood's  Inflitute  of  the  Laws  of  England. 
■  ■  Inflitute  of  the  Civil  Law. 

Yorke's  (Sir  Jofepli)  Memorials  to  the  States 

General. 
ZoucH  Jus  Fcciak. 


*  Particularly,  Atkyns,  Barnardifton,  Brown  (Cafes  in  Parliament)  Bulftrode,  Burrow  (Including  his 
5ih  and  lal  volume)  Carthew,  Cafes  in  Chancery,  Cafes  temp.  Lord  Hardwickc,  Cafes  temp.  Holt, 
Cafes  temp.  Lord  Talbot.  Coke.  Comyns,  Croke,  Godbolt,  Hardres,  Hobart,  Keble,  Leonard,  Levinz, 
Lof',  L-icas,  Modern  Reports,  Precedents  in  Chancery,  Lord  Raymond.  Rolle,  Salkeld,  Saunders, 
Savile.  SI  ower  (Cafes  in  the  King's-Bench,  and  in  Parliament)  Siderfin,  Skinner,  Strange,  Style, 
Ventris.  Vernon,  Vefey,  W.  P.  Williams,  Wilfon,  Yelverton. 

+  This  authors  name  is  erroneoufly  written  Roccius  by  fome  reporters  of  cafes  adjudged  in  our  courts. 


PRELIMINARY 


PRELIMINARY  DISCOURSE. 


AMONGST  the  innumerable  Books  which,  from  Time  to  Time, 
have  iffued  from  the  Prefs,  none  have  been  deemed  of  greater  Ufe 
and  Confequence,  to  maritime  Nations,  than  thofe  which  have 
been  judicioufly  compofed  on  Trade  and  Commerce. — They  are,  how- 
ever, I  beheve,  notwithftanding  the  very  great  Extenfivenefs  of  the  Subjeft 
at  large,  much  fewer,  in  Proportion,  than  the  efleemed  Writings  upon  the 
other  Arts  and  Sciences: — and  the  Reafon  may  be  that,  as  Men  of  Science 
merely,  whofe  Studies  are  confined  to  Theory,  cannot  be  confidered  as  com- 
petent to  treat,  with  Propriety  and  Satisfa6lion,  on  Matters  which  are,  in 
their  Nature,  chiefly  practical;  {o,  on  the  other  Hand,  few  Merchants 
efpeciaUy  whilfl;  deeply  engaged  in  Purfuits  of  aftual  Bufinefs,  have  either 
Leifure,  or  can  fufficiently  detach  themfelves  from  partial  Views,  even 
though  they  were  adequately  verfed  in  Literature,  to  enter  fcientifically,  and 
.a-t  the  fame  Time  with  a  due  Regard  to  the  Public  Good,  into  what,  never- 
thelefs,  affords  an  ample  Field  for  the  Exercife  of  Talents,  to  the  o-reat  Ad- 
vantage of  the  Community,  as  well  as  of  Individuals. 

Not  only  every  diftinft  Art  and  Science,  but  each  refpeftive  Branch  there- 
of, has  been  fo  particularly  confidered,  and  fo  fully  difcuffed,  in  every  Point 
of  View,  that  the   Public  have  been  often  difgufl:ed  with  Minutenefs,  and 
-even  naufeated  with  Repetition. 

But  it  is  not  fo,  with  Refpcft  to  Treatifes  on  Commerce;  whofe  per- 
petually aftive  Nature,  various  Fluftuations,  and  Changes,  like  the  reftlefs 
and  inconflant  Elements  through  which  it  is  conduced,  are  continually  pro- 
43u6iive  of  neti)  Objects  of  Contemplation,  and  unprecedented  Circumflances  ; 
from  which  to  draw  ufeful  and  pradical  Improvements,  as  well  as  the  Means 
of  eradicating  pernicious  Errors. 

B  And 


M 


PRELIMINARY     DISCOURSE. 


And  although,  as  well  in  our  own  Country  as  abroad,  there  have  fometimes 
appeared,  from  amongfl  the  refpcftable  Body  of  Merchants,  Names,  which 
ought  ever  to  be  revered,  and  held  in  grateful  Remembrance  for  the  valuable 
Liirhts  which  they  have  very  ably  throv/n  on  the  Subject  in  general;  there  are, 
liowevcr,  undeniably  fome  Departments  of  it,  which  have  never  yet  been 
thoroughly  examined,  or  fuitably  elucidated: — and,  particularly,  the  very 
neceffarv  and  elTential  one  of  Insurance  has,  of  all  others,  had  the  lead 
Attention. 

The  great  Ulility  o^  Infurancc,  by  Means  of  which  the  Value  of  Property, 
in  almofl:  every  Situation,  howfoever  precarious,  may  be  rendered  fafe  againll 
Accidents,  is  fo  univerfally  acknowledged,  that  there  needs  no  Attempt  to 
prove,  or  explain  it. 

Commerce  is  indubitably  the  grand  Source,  from  whence  is  derived  all 
that  enriches,  ftrengthens,  and  adorns  a  State. — Without  an  extenfive  and 
flourifliing  Commerce,  this  Nation  could  never  have  arifen  to  that  fuperla- 
tive  Degree  of  Grandeur  in  Arts,  Arms,  and  Wealth,  which  have  made 
her  the  Enw,  and,  till  lately,  the  Veneration  of  all  other  maritime  States ; 
and  without  Irifurance,  that  Commerce  could  neither  have  been  promoted, 
nor  carried  on  •, — nor  can  it  ever  proceed,  unfupported  by  Infurance  ;  and, 
confequently,  the  national,  as  well  as  private  Advantage  of  well-regulated 
Infurance  is  obvious  and  indifputable. 

But,  whenfoever  the  Difficulties,  Difcouragements,  and  Want  of  reci- 
procal Confidence,  which  naturally  arife  from  Ignorance  and  Chicanery, — 
Deceit  and  Impofition, — ftiall  fo  far  prevail,  between  Merchants  and  Infurers, 
as  to  be  a  Check  to  the  Spirit  of  honourable  Enterprize  on  the  one  Hand, 
and  to  a  Liberality  of  Sentiment  and  Conduft  on  the  other ;  not  only  the 
laudable,  and  even  the  mod  judicious  Exertions  of  Individuals,  on  both 
Sides,  to  preferve  and  improve  their  Property,  through  a  harmonious  Com- 
mixture o^  mutual  Interejl,  will  be  defeated  and  rendered  nugatory ;  but  the 
national  Confequence  mull  neceffarily  decreafe,  with  the  Declenfion  of  it's 
Commerce. 

The  vafl  Variety, — the  Extent, — and  the  Importance  of  the  Matters 

which  relate  to  Infurance,  unquellionably  merit  the  ferious  Attention,  and 

are  capable  of  exciting,  in  no  inconfiderable  Degree,  the  conftant  Curiofity, 

of  all  Perfons  whofe  Situation,  or  Connexions,  lead  them  to  Tranfaftions, 

which  mav  have  Affinity  with  that  Subjeft. 

Those 


PP.ELIMINARY     DISCOURSE.  vii 

Those  Matters  are  become  oi^  To  great  Magnitude  in  this   Country;  and 
the  Circumftances  thereof,  in  divers  Refpefts,  fo  extraordinary,  as  well  as 
numerous;    yet,  are  for  the  mofl;  Part  fo  liltle,  or  fo  ill  imdcrjlood ; — the 
Ideas  which  are  entertained  regarding  them  are  fo  limited,  or  confufed  ;  and 
the  Opinions,  even   of  many  Perfons   -who    arc   the   mofl   concerned  about 
them,  and  whom  it  therefore  the  more  behoves  to  be  v/ell  acquainted  v.-ith 
them,    are  often  ^o  crude,    erroneous,    ^nd  jarring ;    that  it  is,    in  Truth, 
€arneftly  to  be  wifiied,  nay   indifpenfably  requiiite,  as  well  for  the  Honour 
of  this  great  trading  Nation,  and  the  Interefts  of  it's  Commerce,  as  for  the 
mutual  Eafe  and  Advantage  of  all  thofe  Perfons  efpecially,  whofe  ProfefTioas 
and   Employments    are    more   immediately   connecled  with    maritime    and 
mercantile  Affairs,  that  fome  eligible  Means  were  devifed,  whereby  the  true 
Principles  and  Doctrines   of  Infurance   might  be  better  fettled,  more 
familiarly    inculcated,    and    more    generally    adhered    to,    than    they    feem 
hitherto  to  be  :  fince  it  is  prefumed  that  very  few,  even  amongft  thofe  who 
have  a   large  Experience  of  this  Bufinefs,  would  be  difpofed  to  denv  that, 
with  Regard  to  the  Practice   of  it,  the  fame  Imputation,  of  "glorious 
Uncertainty,''  may  be  too   aptly   applied,  which  has   been   fo   long,    io   re- 
proachfully,   and    yet  fo  jufUy  made, — I   do   not  fay,  upon   the   Lazes   of 

England  themfelves,  which  certainly  deferve  the  highell  Encomium,  but,^ 

on  the  Exercife  and  Adminijlration  of  them. 

AhL  tho^G  fuperjicial,  and  therefore  incoherent,  vague,  and  contradictory 
Notions,  which  are  perpetually  occurring  amongft  the  Bulk  of  the  Perfons 
concerned  in  Matters  of  Infurance  ;  and,  the  almofl  Infinity  of  Irreguhritics; 
Errors,  and  Deceptions,  which  take  their  Rife  therefrom,  and,  in  Faft,  re- 
ceive daily  Promotion  and  Encouragement  thereby, — proceed  undoubtedly 
from  an  almojl  general  DefcEl  of  Acquaintance  with  the  Subject ;  and  the  en- 
tire Want  of  an  adequate,  elemental  Clew,  which  might  lead  to,  at  leaft,  a 
tolerable  Acquihtion  of  it. 

It  fhould  feem,  therefore,  that  little  Argument  is  neceffary  to  fliew,  that 

every  poffible  Countenance  and  Aid,  both  public  and  private,  ought  to  be 

given  to   the   Attainment  and  Cultivation   of  the    Know^ledge    and  jujl 

Practice  of  Infurance;  as  the  primary  and  principal  Means  by  which  the 

maritime  and  commercial  Interefts   of  ihefe  Kingdoms  can  be  maintained, 

cherifhed,  and  enlarged  ;  and  the  Property  of  the  Merchants,  and,   confe- 

quently,  of  all  the  other  Traders,  Manufaclurers,  and  Artifans,  who  depend 

on,    or   are   immediately   conne6led    with  them,    can  be  rendered   fecure 

and  permanent. 

From 


VIU 


PRELIMINARY     DISCOURSE. 


From  \he  general  Reafons  here  advanced,  and  others  which  I  mean  more 
particularly  to  adduce  in  the  following  Pages,    it  will  not  be  difficult  to  per- 
ceive how  very  necefTary  it  is,  in  every  maritime  Country,  and  of  how  great 
public  Benefit  it  would  be  efpecially  in  our  own  ;  where  the  Bufinefs  of  Infu- 
rance,  bv  being  carried  to  a  m.uch  greater  Extent,  is  attended  with  infinitely- 
more  numerous  and  complicated  Circumflances  than  in  any  other  whatever ; 
to  have  a  clear,  intelligible,  and  well  digefted  Code,  or  System  o[ Prin- 
cipUs,  Rules,  and  Injlru^ions,  for  a  Guide,  as  far  as  Experience  may  have 
hitherto  taught,  in  every  Thing  liable  to  occur  in  relation  to  Affairs  of  Infu- 
rance  in  general;  in  order  that  every  one,  who  may  be  in  any  Wife  interefted. 
therein,  might  be  enabled  to  acquire  readily  a  competent  Knowledge  thereof, 
and  become   mutuallv  well  underftood   in    their   various   Tranfaftions  to- 
gether ; — and  that  the  Contrariety,  Perplexities,  and  Impofitions,  which  are 
i'o  prevalent,  and  fo  loudly  and  juftly  complained  of, — and  from  whence  are 
generated  thofe  perpetual  Difputes,  and  Litigations,  which  are  not  only  highly 
detrimental  to  the  Interells,  but  difgraceful  to  the  Charafters  of  thofe  en- 
gaged in  them, — might  be,  in  a  great  Meafure,  prevented  or  diminiffied. 

It  is,  however,  very  remarkable,  and  much  to  be  lamented  that,  amongft 
all  the  maritime  Nations  of  Europe,  in  Great-Britain  only,  where  it  is 
mofl  needful,  there  fhould  be  neither  any  fuch  public  Code,  or  Ordinance, 
comprifing  every  requifite  Direftion  and  Regulation; — nor  any  Chamber, 
Court,  or  Perfons  whatfoever,  appointed  by  Authority,  for  the  adjuffing  of 
Loffes,  Averages,  &c.  and  deciding  in  a  certain,  judicial,  dindifummary  Way, 
all  Matters  of  Difference  : — but  that,  on  the  contrary,  through  that  extenfive 
Ocean  of  Affairs  and  Incidents  which  Infurance  embraces,  every  one  is  left 
without  any  fafe  Chart,  or  intelligent  Inllruftor,  to  be  governed  merely  by 
his  own  private,  and,  in  general,  uninformed  Opinion  : — and,  confequently, 
it  is  not  at  all  furprifing  that  Diforder,  and  Diffatisfaflion,  more  than  ever, 
prevail  in  this  truly  intricate  and  dangerous  Line  of  Bufinefs : — where,  not 
only  allufivcly,  but  indeed  literally  fpeaking,  "  We  appear  all  to  be  adrift, 
without  Pilot  or  Compafs,  driving  before  the  Wind  of  Accident,  amidft 
Ouickfands  and  Rocks ; — fo  that  if  we  long  efcape  Shipwreck,  we  fliall  have 
wonderful  good  Luck." 

No   Art,    Science,  or  Profeffion  whatever  can  be  tolerably  underllood, 
•without  a  true  Comprehenfion  of  the  Nature  and  Effeft  of  its  Fundamentals, 
or   full   Principles. — The  fundavif.ntal  Principle  of  Infurance   is,    fimply, 
IndeiN'kity  ;  1.  e.  An  Obligation  on  the  Part  of  the  Ijjfurer,  for  a  Conf dera- 
tion 


PRELIMINARY     DISCOURSE.  ix 

tion  received,  to  reinflate  the  Infared,  in  /A^  Value  of  the  Property  lie  may  Iqfe,  or 

be  damnijisd,  according  to  the  Terms  and  Intent  of  the  Contrail. Almoft 

every  one  imagines  he  hath  a  clear  Conception  of  this  Propofition  ;  but,  the 
afcertaining,  in  the  great  Variety  of  Cafes,  and  the  nice  and  complicate  Cir- 

cumftances  thereof,  which  now  frequently  happen, \Jl,    The  Fact  and 

Truth  of  fuch  Lofs,  or  Damage,  or  the  Fallacy  of  the  Claim ;  that  is.  Whether 
any  Lofs  or  Damage,  happened,  or  not; — and  to  which  the  Infurer  is  liable? — 
and  odly,  The  jufl  and  precife  Quantum  of  the  Indemnification  which  ought 
to  be  made? — require,  undoubtedly,  clearer  Perception  and  Penetration, 
more  quick  and  acute  Reafoning,  and  a  founder  Judgment,  not  to  mention 
more  Reading  on  the  Subjeft,  than  is,  perhaps,  commonly  to  be  found, 
or  at  leaft  exercifed,  amongft  Men  who  adapt  themfelves  merely  to  the  Row 
tine  of  this  Bufinefs : — and  the  lefs  fo,  the  more  they  are  deprived  of  Time 
and  Inclination  for  Enquiry  and  Reflexion,  by  their  greater  Employment,  and 
more  continual  Hurry,  in  the  neceffary  and  current  Execution  of  it. 

The  Intention  of  this  Difcourfe  is  by  no  Means  to  give  even  the  flightefl; 

Difpleafure  ;    but  yet  general,    impartial,   and  neceffary  Information  : ■ 

Should  This  occafion  to  any  Perfon  whatever  a  difagreeable  Senfation,  it 
ought  to  be  afcribed  to  the  Exiftence  of  the  FaEU  themfelves,  not  to  a  true 
Reprefentation  of  them ;  which  being  for  the  Ufe  of  future,  as  well  as  prefent 
Readers,  the  entertaining  a  falfe  Delicacy,  in  Refpeft  of  Perfons,  would  be 
to  deprive  the  Pw/^/eV  of  thofe  very  Lights,  of  which  it,  unhappily,  (lands  but 
in  too  great  Need  : — and  which,  therefore,  it  is  profeffedly  defigned  hereby 
to  communicate. 

I  WELL  know  how  irritable,  in  Regard  to  the  Matters  of  which  I  am  about 
to  treat,  zre  Paffions,  Humours,  and  Prejicdices ;  but,  fully  convinced  of  the 
Neceffity  of  being  equally  undeterred,  as  uninfluenced  by  them,  on  this  Oc- 
cafion ;  and  trufting  to  the  as  v/ell  known  Candour,  which  always  prevails 
with  Men  of  Underflanding,  as  foon  as  thofe  fubfide,  in  preferring  general 
Utility  to  private  Punftilio,  I  proceed. 

It  is  one  Thing,  to  be  in  a  conRant  Round  of  plodding  Exercife  of  any 
Branch  of  Bufinefs,  or  of  any  Art  or  Science,  palling  through  it  with  the 
Crowd,  merely  by  Habitude,  or  Example,  very  probably  mifconceived,  if  not 
utterly  fallacious  : — but  quite  another,  to  underftand  it  radically,  to  be 
verfed  in  its  Principles,  and  to  apply  them  expertly  in  Pradice. 

C  It 


X  PRELIMINARY     DISCOURSE. 

Ir  miMit  be  deemed  rather  invidious  to  fay,  how  fmall  a  Proportion  of 
the  laro-e  Body  of  Underwriters  and  Infurance  Brokers  have  been  of  the  latter 
Clafs ;  but,  it  is  certain  that  there  have  not  been  wanting  fome  Inftances  of 
thofc  i\\\td  great,  and  leading  \JndeT\f  Titers,  from  their  Avidity  of  beginning, 
or  fubfcribing  almofl  every  PoHcy  that  appeared  to  them,  who,  far  more  bold 
than  zvi/e,  feemed  to  depend,  in  every  Refpe6l,  on  jnere  Chance;  and  to  follow 
intirely  the  ridiculous  and  vulgar  Adage,  that  "  an  Ounce  of  Luck  is  worth  a 
Pound  of  Judgment ;" — and,  who  have  not  only  underwritten  almoft  every 
Policy,  but  adjuflcd  every  Average,  Lofs,  Return,  &c.  jufl;  as  they  were 
exhibited  to  them,  or  as  they  have  been  requefted,  with  little,  and  very 
often  no  Infpcftion,  or  Examination,  and  without  a  fingle  Document,  or 
Paper  produced  ;  till  they  have,  in  the  End,  fatally  experienced  the  infal- 
libly bad  Confequences  of  their  Inattention,  or  Incapacity  : — for,  was  it  poffi- 
ble  that  they  fliould  have  been  otherwife  than  conftantly  and  grofly  impofed 
upon  ;  and  caufed  many  others  to  be  fo  too,  who  were  induced,  from  enter- 
taining falfe  Ideas  of  the  Knowledge  and  Abilities  o^  fuch  Leaders,  to  follow 
their  illufive  Pattern? — By  Leader,  I  mean,  more  precifely,  every  Perfon  who 
Jirjl  underwrites,  oxjirjl  figns  an  Adjufl.ment  on,  a  Policy. 

Neither  would  it  be  fhort  of  Truth  to  intimate,  that  there  have  been 
fome  confiderable  Underwriters,  as  well  as  Brokers,  who  were  totally  igno-, 
rant  of  the  true  Import  and  Effed,  even  of  fome  of  the  common,  printed 
Tervis,  in  Policies  o^  Infurance  ;  nay,  who  never  read  a  Policy  throughout  in 
their  Life ; — as  many  Perfons  pafs  for  very  good  Chriftians,  who  never 
perufed  a  fingle  Epiftle,  or  Gofpel  in  the  Bible. 

In  Truth,  what  Monfieur  Savary  fays,  in  his  Parfait  Negociant, 
with  Refpeft  to  the  Qualification  of  a  Merchant,  may,  with  ftill  greater  Pro- 
priety, be  applied  to  an  Infurer ;  viz.  "  II  eft  impoflfible  qu'un  Negociant 
rcufciffe  dans  fes  Entreprifes,  s'il  ne  fcait  pas  parfaitement  fa  Profeflion." — • 
And,  one  may  venture  to  affirm  that,  if  thofe  who  engage  in  a  Courfe  of 
Underwriting  do  not,  previoufly,  obtain,  at  leaft,  an  Initiation  in  the 
Theory  of  Infurance;  and,  efpecially,  if  they  purfue  the  mere  Routine  oi , 
the  Eufmefs,  without  conftant  Enquiry,  Obfervation,  and  Refleftion,  as  alfo 
fome  Reading  on  the  Subjecl ;  they  will  be,  on  numerous  Occafions, 
feverely  fleeced  ;  and  during  a  long  Time  acquire,  very  dearly,  but  a 
flendcr  Proportion  of  fuch  Knowledge,  through  the  undue  Advantages  which 
will  be  ever  taken  of  them  ; — and,  that  mere  Self-Intereft  will,  too  generally^ 

be 


PRELIMINARY     DISCOURSE.  xi 

be  the  governing  Principle  on  the  Side  of  the  AJlireds,  their  Agents,  and 
Brokers,  in  Defiance  of  every  Suggeftion  of  Honour  and  Juftice. 

The  numberlefs  Inftances,  daily  occurring,  of  very  extraordinary  Un- 
Jkiljulnefs,  Negligence,  and  £?Tor,  together  with  atrocious  i)(?c«i  and  7?;^- 
pojition,  in  the  claiming,  ftating,  and  fettling  of  Lofies,  Averages,  Salvages, 
Returns,  &c. — even  on  Policies  of  large  Amount,  are,  in  Reality,  amazing  ; 
and  demand  a  very  ferious  Regard. — They  are,  likewife.  Evils  the  more^ 
to  be  lamented,  as,  in  many  Cafes,  the  great  Sums,  fo  wrongfully  drawn 
from  our  Infurers,  go  into  the  Pockets  of  Foreigners ;  and  are,  therefore, 
not  only  individually,  but  nationally  injurious. — On  the  other  Hand,  it  is 
alfo  true  that  the  very  fame  Mifconception  and  Inexperience  redound  fome- 
times,  though  not  often,  to  the  Prejudice  oi  AJfureds  themfelves  ;  by  calcu- 
lating and  recovering  lefs  than  their  Due. 

It  has  been,  for  a  confiderable  Time  paft,  a  very  ufual,  though  a  very 
difgraceful  Obfervation,  in  our  Courts  of  Judicature,  amongft  the  Council 
employed  in  Infurance  Caufes,  that  "  Underwriters  are  like  a  Flock  of 
Sheep  " — alluding  to  the  Inconfideration,    Indolence,    or  Incapacity,    with 
which  many  of  them  perform  their  Bufinefs  ;  and  their  Aptitude  to  follow 
implicitly  the  Example  of  a.  Leader  ;  or  any  one  who,  perhaps  with  as  little 
Judgment,    or   Information    as    themfelves,  Jirjl   fubfcribes    a    Policy; — or 
without  Enquiry,  frji  figns  thereon  an  Adjuftment  of  a  Lofs,   Average, 
&c. — and  afterwards,  when  fome  one  or  other  whofe  Attention  may  have 
been  awakened, — his  Fears  alarmed, — or  his  Eyes  opened,  by  a  Difcernment 
of  fome  Fallacy,    or  Difcovery  of  fome  Fraud,  the  whole  Flock,  too  late, 
take  Fright ; — and,  being  puzzled  in  the  Maze  of  their  confufed  Ideas,  but 
fall  bound  in  the  Pen,  Difpute  fucceeds  ;  and  they  find  themfelves  obliged  to 
run  wildly  into  a  Court  of  Juftice  for  Redrefs  ;  which,  however,  is  feldom  to 
be  found  there,  from  the  great  Difficulty  of  afcertaining  Fa^s,  and  of  bring- 
ing forth  the  real  Merits  of  an  Infurance  Caufe  ;  and  the  Occafion  for  which, 
by  Q^  previous,  moderate  Acquaintance  with,  and  an  habitual  Attention  to 
what  they  were  about,  and  to  the  Nature  and  Circumjlances  of  the  Rilque, 
or  Demand, — might  have  been  intirely  avoided  ;    as  well  as  the  illiberal 
Garrulity  of  certain  Pleaders. 

■  N"6TrMiNG  13,  however,  more  common,  in  Cafes  where  dn  Underwriter 
nappehs  to  find  that  there  is  Something  wery  en'oneous,  or  injurious  to  him  in 
the  Demand,  the  Accounts,  the  Rating,  or  making  \ip  of  an  Average,  Lofs, 

Sec. 


xu 


PRELIMINARY     DISCOURSE. 


8cc.  <m  a  Policy;  and  even  Something  \cry fraudulent  in  the  Tranfaftions 
concerning  it,  which  has  not  been  perceived  by  feme  one  or  more,  perhaps 
leading  Underwriters,  who  may  have  unfkilfully,  or  negligently  figned  an 
Adjudment  on  it;  and  whofe  Cuftom  probably  it  is,  never  to  look  into  any 
Thing,  but  to  take  all  Things  on  the  Faith  of  Infureds,  or  the  Affurance  of 
Brokers ;  or  leave  them  to  the  profound  Wifdom  and  Sagacity  of  a  Clerk; — 
I  fay,  Nothing  is  more  ufual,  in  fuch  Cafes,  than  for  the  Brokers  to  fay, — in 
order,  merely  through  Impatience,  to  attain  their  End  in  getting  the  Policy 
adjufted,  however  wrongfully, — or  to  favour  the  Affureds,  their  Employers, — 
"  Why,  Sir,  fuck  an  one,  and  fuch  an  one,  or/o  many  have  fettled  it; — Why 
fliould  you  objefcl? — Well,  'tis  always  better  to  follow  Exaviple ; — to  do  as 
others  do  ; — to  fall  in  with  the  Crowd ; — not  to  be  fingular ;  or  fufpicious  ; — 
to  cavil, — or  pretend  to  know  better  than  others  ;" — and  a  great  Deal  more 
of  fuch  Gihbcrijh! — But,  this  Manner  of  proceeding,  befides  the  palpable  and 
immediate  Injullice  of  it,  evidently  tends  to,  what  only  can  be  effecled  by  it, 
the  finn  EftabliQiment  and  Increafe  of  ^;zor^7if^.  Error,  and  Fraud,  in  the 
Courfe  of  all  Matters  whatfoever  in  this  Bufinefs. 

Wherefore,  every  fenfible Underwriter  ought,  indignantly  and  refolutely, 
to  fct  his  Face  againft,  and  contribute  to  root  out,  henceforth,  fuch  ridicu- 
lous Pofitions  -,  and  fuch  an  iniquitous  Mode  of  Afting,  whenfoever,  and  in 
whomfoever  it  is  obferved,  as  would  conftantly  hoodwink  his  Underflanding, 
even  to  his  Ruin  ; — and  to  infill  on  what  every  koneji  Broker  doth,  and 
ouHit,  without  the  lead  Hefitation,  or  Need  of  Importunity,  to  acquiefce 
with,  on  every  fuch  Occafion,  viz.  the  inftantly  fetting  about  to  produce 
Papers,  reftify  Errors,  to  deteft  Deception,  or  Mifreprefentation ;  and  to 
do  immediate  and  impartial  Juftice,  towards  thofe,  whofe  Confidence  in  his, 
and  his  Employer's  Probity,  or  even  whofe  Inexpertnefs,  or  Indolence,  may 
have  led  them  to  be  fo  impofed  on  and  wronged,  and  to  put  others  in 
Danger  of  being  fo,  by  their  idle  Example  : — for,  without  this,  and  if  fucli 
fenfelefs  and  difhonourable  Notions  and  Praftices  continue  to  prevail,  what 
can  be  expected  to  prove  the  neceffary  Confequences  ?  —  Not  Veracity, 
Harmony,  and  mutual  Benefit ; — but  continual  Finejfe,  Overreaching,  Dif- 
content ;  and  their  Concomitants,  Difcord,  Litigation,  Bind  general  Iii/ecuri'y  ; 
which,  in  Fact,  is  become  already  but  too  much  the  Cale. 

Why  (hould  not  all  needful  Papers,  Documents,- Proofs,  &c.  between 
Merchant  and  Infurer,  be  made  put  and  produced^-  habitually,  as  Matters- 
of  Courfe ;  or,  at  leaft,  on  Requifition  ;   and  with  as  much  Regularity  and 

Explanation, 


PRELIMINARY     DISCOURSE.  xiU 

Explanation,  as  in  Affairs  betw^een  Merchant  and  Merchant?  who  are,  not- 
withftanding,  in  general,  reciprocally  conufant  of  the  Circumftances  of 
their  Tranfaftions  together  ;  whilft,  on  the  contrary,  an  Iifarer  muft  always 
depend  on  the  Infured  for  a  Communication  of  them  ; — and,  why  fhould 
Gentlemen  be  intimidated,  or  fuffer  themfelves,  without  due  Rcfentment,  to 
be  fliled  litigious,  for  requiring  that  Satisfaction  only,  to  whicli  they  have  a 
juft  and  undeniable  Right?  or,  why  fubm;t,  as  many  atlually  do,  to  be  a 
conftant  Prey  to  Subtilty  and  Impofition? — And,  when  fuch  reafonable  Requi- 
fitions  and  Enquiries  concerning  Fa6ls,  Papers,  Sec.  arc,  as  tJiey  often  are, 
on  frivolous  Pretences,  refufed,  evaded,  or  unfatisfaHorily  anfwered  ;  and 
the  Brokers,  or  Affureds,  pretend  to  grow  angry,  nay,  fomctimes  rude  and 
caiforious ;  doth  it  not  induce  a  flrong  Sufpicion  of  j/f;2?/?i:r  Praftices  and 
Intentions  ? — The  Truth  is,  tln'fe  are  generally  at  the  Bottom,  in  fuch  Cafes. 

But  it  may  be,  and  ufually  is  objefted  that,  to  produce  Papers,  when  an 
Adjuftment  on  a  Policy  hath  been  figned  by  one  or  two,  or  more  Under- 
writers, would  frequently  be  too  troublefome;  take  up  too  much  time;  give 
Difgufl  to  Affureds ;  make  the  Infurer  who  requires  an  Infpeftion  into  them, 
a  Difclofure  of  FaUs,  and  to  exercife  his  own  Judgment  thereupon  (no  Matter 
from  what  Degree  of  jult  Sufpicion,  or  even  Certainty  of  Error,  or  that  lie 
has  been,  or  is  about  to  be  defrauded,  or  impofed  upon)  appear  mean,  or 
cavilling  ; — when,  by  a  contrary  Conduft,  by  fubfcribing  and  fettling  z';?/'/jaV.^V 
and  without  any  Oueflions  afked,  he  may  underwi-irc  as  many  Policies  as  be 
pleafes,  or  as  the  aforementioned  great  and  leading  Underwriters  do. — In  this 
Manner  do  many  Gentlemen  fuffer  themfelves  to  be  alternately  ai/wr^(j^  and 
alarmed,  not  only  out  of  their  Property, — but  out  of  their  Common  Senfe  ! 

Are  theff,  however,  fufficient  Pretences,  or  Motives,  to  itiduce  Men  of 
Underllanding,  and  Knowledg^c  A  their  Bufinefs,  to  yield  to  fuch  Modes  of 
Condu61  in  it  as  are  utterly  iauacious,  ruinous,  and  fubverfive  not  only  of 
all  Power  of  exercifing  private  Judgment  and  Experience,  but  of  n-.jardino-,, 
in  the  leaft  Degree,  even  againft  intentional,  reiterated,  and.  confummate 
Frauds? — Surely  !  if  it  be  worth  the  While  to  go,  frequently,  into  Courts  of 
Juftice,  at  an  enormous  Expence  and  Trouble,  for  the  Difcovery,  or  Deter- 
mination of  2i  Jingle  Fa'Sl ;  or  to  afcertain  the  Expofition,  or  Operation  of  a 
Jingle  Word  ;  of  wiiich  feveral  Inftances  might  be  produced  ;  it  would  be  far 
more  eligible,  fave  more  Time,  prevent  Sufpicion,  be  more  becoming  the 
refpeQable  Charafters  of  Merchant  and  Infurer,  and  of  more  general  Benefit 
and  Eafe  to  all  Parties,  to  be  always  ready  to  explain  and  difcufs  all  Matters 

D  candidly 


xiv  PRELIMINARY     DISCOURSE. 

candidly  and  impartially  ;  to  reftify  Errors  currently  ;  and  to  be  open  to 
Truth,  Honour,  and  Juflice ;  than  to  abandon  thefe,  and  give  up  the  Reins 
to  Fallacy,  Prejudice,  and  Litigation. 

When  either  Individuals,  or  a  coIlc6live  Body  of  Men,  of  any  Clafs, 
Profeffion,  or  Rank  whatever,  once  fet  out,  and  for  fome  Time  proceed, 
in  Ignorance,  and  Error,  M'ithout  due  Enquiry,  Inftruftion,  or  enabling 
themfelves  to  form  a  right  Judgment  of  what  fiiould  be  the  Objefts  of  their 
Attention  ;  but  take  them  merely  by  Precedent,  or  upon  Truft,  or  depend 
on  others  who  are  interefted  to  deceive  them ;  fuch  Error  foon  takes  Root, 
grows  '-[nio Habit,  and  generates  Errors  as  innumerable  as  the  human  Progeny  r 
On  the  contrary,  thofe  who  acciijlom  themfelves  to  right  Methods,  can- 
not, with  that  implicit  Facility,  which  is  in  general  ufed,  and,  therefore,, 
ever  looked  for  in  this  Bufinefs,  fall  in  with  zorong  ones. 

Considering,  however,  the  infinite  Variety  of  Circumftances  to  which 
Infurance  Matters  are  liable ;  and  that,  confequently,  many  of  them  muft 
prove,  from  Time  to  Time,  of  a  novel  Kind  ;  particularly,  from  the  unufual  or 
uncertain  Cafualties  of  War  ;  it  is  naturally  to  be  expefted  that  a  Diverfity 
of  Ideas  and  Opinions  will,  on  fuch  Occafions,  fometimes  arife,  efpecially  be- 
tween the  Parties  who  may  be  interefted  therein  : — but,  were  they,  on  both 
Sides,  more  intimate  than  they  ufually  are  with  the  DoEirines,  Principles,  and 
Laws  of  Infurance ;  and  the  right  Application  of  them  to  the  hitherto  known 
Cafes  and  Occurrences;  fuch  Contrariety,  fuch  unmanly,  and  mutually  hurtful 
Altercations,  as  are  frequently  difgracing  Lloyd's  Rooms,  would  foon  fub- 
fide;  and  Men's  Minds,  by  being  pofreffed  of  a  competent  Knowledge  of  what 
has  been  already  done,  and  underflood,  in  divers  Inftances  the  mofl  fimilar 
to  their  own,  would  be  reciprocally  more  open  to  Conviftion,  and  better 
prepared  to  let  Partiality  and  Selfifhnefs  give  Place  to  Reafon  and  Equity: — 
for,  it  is  commonly  Ignorance,  united  with  Self-Intereft,  that  are  the  Parents 
of  Difpute ;  and  that  prompt  Perfons  who  are  aftuated  by  them  to  endeavour 
to  fligmatize  others,  who  are  better  informed,  with  the  Appellation,  always 
ready  for  fuch  Infurers,  of  Caviller ;  which,  in  Fa6l,  properly  and  only 
belongs  to  themfelves, — who  thus  add  Infult  to  Injury. 

Those,  of  whom  there  are  feveral,  who  have  taken  Pains  to  underRand- 
what  they  are  employed  about,  to  obtain  a  Proficiency  in  the  Knowledge 
of  Things  which  concern  their  Profeflion,  and  in  their  refpeftive  Avocations, 
to  conneft  a  fair  and  regular  Pradice  with  ajuj  Theory;  and  who,  thereforei. 

cannot 


PRELIMINARY     DISCOURSE.  xv 

cannot  fubmit  to  repeated  Depredations  upon  their  Property  and  Fortune ; 
are  generally  obnoxious  to  Malevolence,  and  looked  upon  ungracioufly  by 
all  thofe  who  govern  themfelves  by  no  other  Rule,  or  Motive,  than  their 
own  Advantage  and  Conveniency ;  or,  who  ufually  aft  at  Random:  befides 
the  Confufion  of  Ideas,  and  clafliing  of  Notions,  which  occur  with  Perfons 
who  attempt  to  difcufs  what  they  do  not  comprehend  ;  and  the  Difticuhy 
of  convincing  one  lefs  intelligent,  or  lefs  candid  than  yourfelf ;  whofe  Pre* 
judices  inftantly  begin  to  operate,  upon  the  flighteft  Overture  to  that  Eifeft. 

But  wherefore,  in  any  Situation  whatever,  (hould  Folly  take  the  Lead 
of  Good  Senfe? — Can  it  be  for  the  true  Intereft  and  Happinefs  of  Mankind, 
that  Error  and  Deception  fliould  predominate? — Shall  Truth  yield  to  Fal- 
fliood,  Probity  to  Craft,  and  Honefty  to  Knavery,  even  in  thofe  Walks  of  Life 
where  Gain,  or  the  Purfuit  of  Property,  is  the  primum  Mobile? — Can 
the  Merchants  and  hifurers  of  London,  who  have  hitherto  flood  in  tlie  moft 
refpeftable  Light,  in  the  Eye  of  all  Nations,  be  indifferent  with  Regard  to  what 
kind  of  Principles  and  Practices  prevail  in  any  Branch  whatever  relative 
to  Commerce  ;  and  not  think  it  for  their  own,  and  for  the  common  Benefit, 
to  countenance  every  well-meant  Attempt  towards  a  Regulation  of  them  ; 
and  to  check  the  Courfe  of  great,  nay,  I  am  well  authorifed  in  fayinf^, 
ENORMOUS  and  growing  Abuses!  Abufes,  -which  prevail  to  a  Pitch  un- 
known before, — chiefly  becaufe  they  are  in  general  unattended  to,  or  unob- 
ferved,  or  tamely  fubmitted  to, — in  a  Department  fo  indifpenfably  neceflarVj^ 
and  of  fo  much  Confequence  as  that  of  Infurance. 

How  much  foever  the  conftant  Occurrence,  in  various  Refpefts,  of  the 
Diforders  alluded  to,  is  to  be  regretted  ;  ftill  more  fo  is  the  entire  Want  of 
thofe  highly  eligible  Modes  of  Regulation  and  Redrefs,  which  are  eftabliflied, 
in  feveral  Parts  of  Europe,  under  the  Denominations  of  Judgc-Con/uIJiiips, 
Chambers,  or  Courts  of  AJJiirance,  &c.  formed  of  private  Perfons,  flcilful  in 
the  Affairs  of  Commerce  and  Infurance  ;  and  invefled  with  Power  to  decide 
fpeedily,  and  at  a  fmall  Charge,  all  Difputes  and  Differences  concernin<T 
them. — It  is,  indeed,  truly  lamentable  that  the  only  Means  of  Remedy,  in  fuch 
Cafes,  provided  in  this  Country,  fiiould  be  Juch  as  are  attended  with  in- 
finitely more  pernicious  Effefts  than  even  the  Difeafe  itfelf. Thofe  Evils, 

hov\^ever,  with  Refpe6l  to  the  Affairs  o{  Infurance,  in  particular,  might  un- 
queftionably  be,  in  a  great  Meafure,  obviated  and  redreff'ed,  with  fome 
Degree  of  fuitable  Deliberation,  much  more  efficacioufly,  and  v/ith  much  more 
general  Saiisfaftion    (as  haih  been  fully  evinced,   by  long  Experience,  in 

other 


xvi  PRELIMINARY     DISCOURSE. 

other  Countries)  amongft  Merchants  and  In/urers  them/elves,  than  by  rerorting, 
even  on  very  petty  Occafions,*  where  the  Mifchief,  inftcad  of  Reftraint, 
evidently  derives  continual  Accumulation  :  I  mean,  to  Courts  of  Law  : — 
Avhofe  priftine  Dignity  and  Authority,  in  the  Judgment  of  the  difccrning  Part 
of  the  Public,  have  been  far  from  receiving  either  additional  Weight,  or  Lujlre, 
by  \\\c  extraordinary  Procedure  which,  in  later  Times,  hath  diilinguiflied  fome 
of  them,  in  divers  Cafes  of  Momeat.. 

What,  in  any  Country,  could  be  more  prepofterous  and  intolerabfy 
grievous;  or  more  reproachful  to  a  great  commercial  Nation,  in  particular;  than 
that  the  Adminiftration  of  private  Judicc,  in  the  Affairs  of  Merchants, 
fhould  be  folelv  in  the  Hands  of  Lawyers;  and  marked  by  total  Uncertainty, 
frequent  Mj/lake,  and  Inconclufivenefs.  I — that,  great  as  mud  be  the  Danger  of 
palfrng  wrong  and  fallible  Judgments,  where  the  Power  of  judging  fhould 
reft  in,  or  be,  in  Effect,  affumed  by,  or  yielded  to,  one  Perfon  only  ;  yet, 
through  an  Alfectation,  or  a  Neceffity  of  Difpatch,  a  Rapidity  of  Proceeding 
in  a  Multiplicity  of  Suits  of  different  Natures,  the  Deci/ions  pronounced  fliould 
be  not  feldom  erroneous,  fometimes  contradictory  ! — that  thefe  fiiould  often  be 
the  Kffect  of  mere  immature  Opinion  ;  taken  up,  and  thrown  out  precipitately, 
and  adhered  to  lenacioiijly,  from  the  very  Opening  of  a  Caufc  ;  nay,  perhaps, 
previoufly  thereto  :  or,  formed  upon  Iomega? /zVz/,  mi/conceived,  ox  mifreprt- 
fented  Ground,  without  a  proper  Difcvjfwn  of  Merits;  and,  therefore,  preg- 
nant with  further  Diffention,  leading  the  Suitors  into  Perplexities,  and  the 
Public,  fometimes,  into  fatal  Error,  by  eftablifliing  that  as  Law,  which 
afterwards  ffiould  be  found  not  to  be  fo  ;  but  the  Refult  of  Discretion  !f — 
that,  in  a  Court  of  Law,  not  the  known,  fettled  Principles  of  Law,  but 
general  Rules  of  Equity  fhould  be  made  the  Guide ;  fuch  Equity  too  as  an 

*  Such  as,  for  Inflance,  to  determine  "  Wheilier  a  Rftttrn  of  Piemuim  agreea,  in  a  Policy,  to  be 
xn^Ae^ox  Convoy,  means  onTv,  \n  Ca^t  o^  Convoy  for  the  Vnyage  ;  or,  for  dny  partial  Convoy  ?" — Upon 
whicli  Qiieflion  a  Trial  was  lately  had,  and  decided  for  the  latter  and  literal  laterpreiaiion  : — but,  this 
being  unfaiisfattory  to  the  Utiderwriters,  it  was  in  Agitation  to  have  a  new  Triul  thereupon;  becaufe 
the  Return,  ftipulated  in  the  Policy,  was  the  fame  as  was  to  be  made  on  other  P.)!ici(.s,  on  the  like 
Adventure, yi>r  the  Voyage;  and  becaufe  in  fome  other  Policies,  there  was  expreird  a  [mailer  Return 
in  Cafe  o\  partial  Convoy  ;  and  the  OmiJJion  ol  the  Words,  "  for  the  Voyage,"  if  not  merely  a  Trap  on 
tlie  Part  of  the  Alfured,  was  an  Overfighl  of  the  Infurers:  Nay,  it  was  quite  common  for  the  Brokers 
to  fay  to  the  Infurers,  on  the  latt«r  obferving  the  OrailTion  of  ihofe  Words,  at  the  Time  of  Under^ 
writing,  that  "  they  were  to  be  z/n^<r/)!(7ai." -Lilly  ^nA  Roberts  \.  Ewer,  at  Guildhall,  Mick.    1778. 

+  There  is  Something  truly  noble  in  the  following  Words  of  the  honeft  Ld.  Camden,  in  his  Argument 
in  the  Cafe  of  Hind/on  and  Kerfey,  p.  53.  Quarto  Edit.  i77t- — "  Difcretion  is  the  Law  of  Tyrants} 
it  is  always  unknown  ;  it  is  different  in  different  Men  ;  it  is  cafual,  and  depends  on  Conflitution,  Temper, 
and  PafTion :  in  the  bcft  it  is  ohcnumes  Caprice ;  in  the  wuril,  every  Vice,  Folly,  and  Pafliion,  to 
which  human  Nature  is  liable." 

Individual 


PRELIMINARY     DISCOURSE.  xvii 

Individual  might  be  difpoied  to  apph'  pro  re  naiaf — that  this  Equity  fiiouid  be 
afTumed  in  an  extraordinary  Latitude  of  conftruing  and  deciding  upon  clear 
and  p\dL\n  Statutes  ;  not  as  they  arc,  and  as  the  Makers  of  them  expreffed 
them,  and  the  Public  underftand  thcni ;  but,  as  fuch  an  Individual  might 
conceive  they  ought  to  be  :  fo  that  what  might  be  delivered  fliould,  inflead 
of  Law,  he  Legijlaiian  ! — that,  confequently,  the  bed  and  wifefl  Men,  no 
not  the  ablefl  Projcjfjr  oS.  Law  amongil  them,  in  Spite  of  Reafon,  Juilice,  and 
the  beft  Opinions  previoufly  had,  could  fcarcely  ever  fay,  what  zf,  or  v.hat 
is  not  Law  ;  or  foretell  on  what  Grounds  any  Caufe  w'ould  be  taken  up  ;  or  take 

upon  him  to  determine  what  v.'ould  be  the  Event  of  an  A6lion  or  Suit ! • 

It  hath,  hov\'ever,  been  remarked  tliat,  this  was  not  a  diiHcult  Matter,  in 
England,  for  Men  of  Knowledge  and  Experience,  in  the  Times  of  Lord 
Hardwicke,  and  other  eminent  Judges  : — v/ho,  revering  the  Lav/s  of  their 
Country,  ftudied  Uniformity  in  their  Decifions ;  prefering  it  to  the  vain  Admi- 
ration attending  the  Appearances  of  fuperior  Genius,  or  the  Applaufe  of  thofe 
who  might  profit  by  the  Deviations  from  eflabliflied  Principles. 

One  of  the  mod;  ancient  and  boaOed  Rights  of  Engliflimen  is  Trial  hy 
Juries: — and  "the  Property,  Liberty,  and  Life  of  every  Perfon,  depend 
upon  maintaining  it  in  it's  legal  Force."* — 'Tis  a  weighty  Concern,  and  Qiould 
be  managed  ferioufly,  and  co7rJcienlio7{/ly :  and,  therefore,  every  Man  ought 
to  be  acquainted  with  thofe  Lazos  and  Cujloms,  at  leaft,  v/ith  which  he  is  im- 
mediately concerned  ;  fince  in  the  Solution  of  fome  Ouedions  of  Lninortance 
the  Law  and  the  Facl  are  intimately  blended  together.— Yet,  would  it  not  be 
deplorable  to  obferve  juries  of  Merchants,  frequently  appear  to  be  [o  ijiconi- 
petent  (efpecially  as  to  Matters  of  Infurance)  or  fo  pajfive,  as  to  fubmit  to 
the  mofl  fubtile  Preclujion  of,  and  Ufurpation  over  their  unquellionable  Jurif- 
diftion,  in  hearing,  eftablifliing,  and  judging  even  of  Fails;  although  the 
Law  niould  have  provided  that  every  Matter  in  Iffue  fiiall  be  fo  clear  and  in- 
controvertible that  twelve  Men  fliall  concur  in  Opinion  to  decide  it  ! Would 

it  not  be  pitiable  to  behold  even  fuch  Men,  fometimes,  as  it  were,  fafcinated 
hy  an  injinuating  Elocution,  a  refined  Plaujihility,  an  impofing  Manner;  and 
feduced,  fuddenly  or  inadvertently,  almpft  into  Perjury,  by  giving  a  VerdvSi 
upon  jVf(?n7i  which  they  had  not  comprehended,  becaufe  not  entered  into, 
nor  even  permitted  to  be  dated  to  them  ! — In  fliort,  what  a  miferable  Con- 
fideration,  for  the  injured  Parties,  and  how  difgraceful  were  it  not  to  this 
noble  and  vaunted  Mode  of  Trial,  if  there  fliould  be  Reafon  to  believe  that 

many  fuch  Verdifts  flood  on  Record! Alas  !    are  not  even  the  greatcft 

Lawyers,  however  eminent  their  Abilities^  or  juft  their  Intentions,  being  Hill 

*  3  BlacL  Com.  351. 

E  frail 


xviii  PRELIMINARY     DISCOURSE. 

frail  Meii  like  ourfelves,  often  at  an  entire  Lofs  to  decide — and  how  fhould 
it  be  otherwife,  in  commercial  Cafes — till  they  have  fearched  Books,  Prece- 
dents, Ordinances;  enquired  of  Merchants  ;*  and  thofe,  perhaps,  not  the  moft 
impartial,  nor  the  mofl  enlightened  as  to  the  Ufage,  in  fuch  particular  Cafes  ? 

If,  in  the  extenfive  Range  of  general  Jurifprudence  (whofe  ObjeQs  are  as 
uncircumfcribed  as  thofe  of  human  Agency)  the  moft  celebrated  Judges  have, 
not  rarely,  mifdireEled,  and  miftook  the  Lav) ; — how  much  more  liable 
are  they,  and  Juries,  to  be  deceived  as  to  Fuels? — and,  '\{  thcfe  be  fup- 
preflTcd,  falfely  reprefented,  or  mifapprehended,  the  Judgment  thereupon 
muft,    neceffarily,  ht  falfe : — for,    "  Ex  Y^Ro  oritur  Jus." 

But,  how  much  more  aggravated,  ftill,  muft  be  the  Mifchiefs  of  Proceedings 
at  Law,  between  the  mercantile  Part  of  the  Subjefts  of  any  State — where 
Juflice  could  not  be  had,  nor  even  a  Hearing  obtained  (although,  perhaps,  of  a 
few  Minutes  only)  but  upon  the  moft  vexatious  and  blood-fucking  Terms  ! — • 
where  the  Laws  fliould  feem  as  if  they  were  made  folely  for  the  Emolument 
and  Aggrandizement  oi  \\\c  Laxcycrs:  u^on  ■^sho^e  Opinions ,  neverthelefs,  from 
their  frequent  Fallacy,  and  Repugnance  to  each  other,  no  Reliance  what- 
ever could  be  made  :  and,  whofe  Learning  and  Oratory,  inftead  of  being 
reftri^ed  to  the  Cause  of  Truth,  fliould  be  conftantly  debafed  with  Levity 
and  I.iceniioifnfs ;  and  made  the  common  Engines  of  Strife  and  Calumny! 
— where  a/fW  leading  Advocates  fliould,  from  Seniority,  arrogate  the  Ma- 
nagement and  Pleading  of  almoft  fw?;)*  Caufe  :  ^n(\  junior  Counfel,  whatever 
might  be  their  Standing,  their  Knowledge,  and  Abilities,  fliould  be  fo  much 
overawed,  as  not  to  dare  to  exert  them  ! — "  where,  befides  (as  Sir  Jofiah  Child 
juHly  remarked)  after  great  Expence  of  Time  and  Money,  it  would  be 
well  if  we  (as  Merchants)  could  make  our  own  Counfel,  being  Common 
Lawyers,  underfiand  one  Half  of  our  Case  :"— and,  through  whofe  Inatten- 
tion, Mifapprehenfion,  and  even  NegleEl  o[  InJlruElions,  the  principal  Merits 
of  it  fliould  remain  uncommunicated,  and  confequently  unheard  ! 

To  what  Extent  Wit  and  Humour,  and  the  fporting  with  the  delicate  Point 
of  R.cputaiion, — by  Men  who  have  fliook  Hands  with  Modefty,  and  difcarded 
common  Decency, — may  be  tolerated  in  the  fober,  judicial  Inveftigation 

*  Ld.  Mansfield  faid,  "  As  I  cxpeflcd  the  other  Caufe  would  be  tried,  I  thought  a  good  Deal  about 
the  Point,  and  endeavoured  to  get  what  A/fiflance  1  could,  by  conversing  with  fome  Gentlemen  of 
Expfrience  in  Adjullnients." — Lewis  v.  Ruc/ter.  a  Burr.  1 167. — May  not  a  Judge  be  as  often  imjled  as 
adiftcd,  by  tbefe  extrajudicial  and  ex  parte.  Convcrfalions ;  and  be  fomctimes  induced  by  them  to  make 
>;p  his  Opinion  too  early  and  immaturely? 

of 


PRELIMINARY     DISCOURSE.  xix 

of  the  Right  of  Property,  I  leave  to  the  Gravity  of  the  Bench  to  deter- 
mine ; — but,  were  declamatory  Invectives,  and  wanton  Infults,  permitted  to 
be  ufually  or  frequently  praclifed  at  the  Bar,  with  Refpe6l  to  Parties  and 
WitnefTcs, — who  are  not  in  a  Situation  to  repel,  or  puni/li  them, — they 
would  become  sen.  inquijiiorial  Tyranny;  a  national  Dilhonour;  and  ever 
refleft  an  immediate  Difgrace,  nay,  fix  a  Criminality  on  the  Magijlrate,  how- 
ever elevated  his  Seat,  who  (hould  fo  far  pervert,  or  forget  the  important 
Funftions  of  his  Office,  as  to  give  a  Sanfiion  to  them  by  his  Silence,  and  even 
promote  them  by  his  Smiles  or  Gejlures : — fince  their  profeffed,  and  only  Ufe  is, 
"to  make  the  worfe  appear  the  better  Part ;"  to  R'lile  Fa^s ;  confound  the 
Merits  of  the  Caufe  ;  and,  by  deluding  the  Minds  of  the  Auditors  into  a  Mi/^ 
conception  of  them,  propagate  further  Mifunderftandings,  Prejudices,  and 
Mifchief : — nor  can  they  ever  ferve  more  honell  Purpofes  than,  on  the  one 
Hand,  to  intimidate  and  d:;ter  Men  of  Senfibility,  and  averfe  to  mere  Wrano^le, 
from  attempting  to  explain,  affert,  or  proteft  their  Rights,  however  bafely 
violated; — and,  on  the  other,  to  furnilh  Encouragement  to  defigning  and 
rapacious  Knaves,  to  harafs  the  unwary,  and  thofe  who  had  confided  in  their 
fuppofed  Truth  and  Honefty. 

A  CELEBRATED  Writer,*  of  the  prefent  Time,  makes  the  following  very 
pertinent  and  feeling  Remark  (a  few  Words  of  which  are  here  omitted) — "  No 
Oppreffion  is  fo  heavy  and  lading  as  that  which  is  inflifted  by  the  Perverjion 
and  Exorbitance  of  legal  Authority  ; — the  Robber  may  be  feized,  and  the  In- 
vader repelled,  whenever  they  are  found  ;  they  wlio  pretend  no  Right  but 
that  of  Force,  may  by  Force  be  punifhed  or  fuppreffed  ;— but,  when  Plunder 
is  perpetrated  by  a  judicial  Sentence,  Fortitude  is  intimidated,  Wifdom  con- 
founded, and  the  Villain  remains  fecure  in  the  Robes  of  the  Magillrate." 

If,  therefore,  Merchants,  through  Defeft  of  Knowledge,  Narrownefb'  of 
Sentiment,  or  even  Indolence,  with  Refpeft  to  their  oion  Affairs,  (loop  to 
render  themfelvcs  dependant  on  the  crude  Notions,  and  precarious,  incon- 
clufiveDecifions  of  Lawyers,  concerning  the  various  Points,  and  Oueftions, 
which  muft,  from  Day  to  Day,  unavoidably  occur; — can  any  Thing  elfe  be 
expefted  to  arife  and  predominate,  in  the  Courfe  of  Bufinefs,  particularly 
Infurance,  but  Diforder,  vague  Opinion,  Contention  ;  and  continual  Obfiruc- 
tions  to  that  fedate,  and  amicable  Procedure,  which  accompanies  mutual 
Intelligibility;  which  is  indifpenfably  neceffary  in  the  Profecution  of  mercan- 
tile Tranfaftions ;  and  without  which  they  cannot  be  profperous? 

*  Dr.  JoJinfon. 

From 


XX  P  RE  LI  MI  NARY     DISCOURSE. 

From  tvheJice  is  it  that  the  mod  profound  Adepts,  and  Sages  of  the  Law, 
derive  their  fancied  Superiority  of  Skill,  in  the  Rules  of  JuUice,  in  Matters 
of  Commerce  and  Infurance?—B.^\\\  it  not,  always,  been  from  the  Informations 
and  Explanations  of  experienced  and  judicious  Merchants  and  Infurers  ;  from 
Time  to  Time  given,  in  the  feveral  Cafes,  which  have  been  introduced,  dif- 
cuffed,  and  decided  in  Courts  of  Judicature  ?— and,  what  lamentable  Ab- 
furdity,  and  Confufion  of  Ideas,  might  not  have  been  often  obferved,  in  the 
Argumentations  there,  upon  fuch  Matters !— yet,  do  \vc  not,  fometimes, 
idly  look  up  to,  as  Oracles,  thofe,  whom  intelligent  Men  amongft  ourfelves 
have,  in  Reality,  in/lruBed  s^ 

Those  Affairs  are  often  accompanied  with  fuch  new  and  various  Circum- 
fhmces  and  Contingencies;  and  depend  fo  much  upon  nice  Diftinflions  of 
fpccial  Cii/Ionis  and  U/agcs;  that  the  Common  Law  of  England  tacitly  ac- 
knowledges it's  own  Imperfeftion,  in  this  Refpe6l,  by  allowing  the  Lex 
MfRCATORiA,  i.  e.  the  Cuftom  of  Merchants, — wherein  Thenifclves,  only, 
are  properly  (killed  ;  and  of  which,  confequenily,  Themfelvcs,  only,  can  be 
the  proper  JiiJgcs, — to  pafs  as  Law. 

The  frequent  Futility,  therefore,  of  Trials,  and  the  Invalidity  of  fundry  De- 
cihons,  AT  Law,  in  m^rcfln/t/tr,  and  efpecially //</u7'rt'ir(?  Cafes,  are  as  evident 
as  the  Vexation,  and  Embarraffment  (yet,  unavoidable  Neceffity  which, 
hitherto,  there  often  isj  of  Recourfe  to  it :  owing  as  well  to  Caufes  already 
alfif'^ned,  as  to  the  formal,  dilatory,  defedive,  and  circuitous  Modes  o^  Proceed- 
ing ;  fometimes  from  Court  to  Court, — or  for  new,  and  repeated  Trials,  in 
the  fame  Court,  on  one  and  the  fame  Policy,  Oueftion,  or  Point;  very 
fimple  perhaps  in  itfelf;  which  migh.t  cafily,  in  much  (horter  Time,  more 
effcSlually  and  certainly,  in  almoft  every  Inflance,  be  elucidated  and  decided 
by  and  amongft  Merchants  iherd/tlves  ;  were  they  to  acquire  that  Judgjnent  in 
their  refpetlive  Branches,  and  to  deport  themfelves  towards  each  other  with 
that  Moderation,  Candour,  and  Patience,  which  befit  their  Station. 

With  ihefe  Difpofitions,  furely  the  abominable  Frequency,  Expence, 
Inefhcacy,  and  divers  other  ill  Confequences  of  Law  Suits,  might,  m  great 
Part,  be  obviated;  by  inflituting  fome  Sort  of  amicable,  yet  folcmn 
Judicatory,  for  the yii?;i77zar)'  Dccijion  of  difputed  Matters  oS.  Infur ance : 
at  leaft,  fuch  as  might  not  be  of  a  very  abflrufe  Nature,  to  confifl  of  fuch  a 
Number  of  Perfons  as  might  be  deemed  requifite  (with  proper  Afhftants,  or 
Clerks)  to  be  elefted,  from  amongft  Gentlemen  of  Sagacity  and  Refpec- 
tability,  and  who  have  had  a  large  Experience  of  thefe  Affairs ;    annually, 

or 


PRELIMINARY     DISCOURSE.  xxi 

or  for  a  longer  Term  ;  or  three  new  ones  each  Year  ;  by  all  fuch  Merchants, 
Infurers,  and  In/urance  Brokers,  who  might  be  inclined  to  refer  their 
Differences  thereto,  and  to  fupport  the  Charges  thereof,  even  with  proper 
Salaries,  by  Subfcription. 

The  Members,  who  might  compofe  this  Court,  fliould  fit  at  dated  Times, 
weekly,  monthly,  or  otherwife,  and  aft  on  Oath,  as  do  the  Judges,  and  Juries, 
in  the  Law  Courts  : — Parties,  their  Agents,  and  WitneJJes,  fliould  alfo,  pre- 
vioufly  to  their  being  heard,  make  proper  Affidavits  before  a  Judge,  or  other 
Magiftrate  (which  fhould  be  filed)  to  give  true  Information : — The  Mode  of 
Proceeding  might  be  duly  regulated,  and  open  : — The  Decifions  rendered  ab- 
folutely,  or  only  occafionaily  final,  according  to  the  greater  or  lefs  Importance 
of  the  Cafe,  or  Quefi:ion,  by  the  Parties  agreeing,  in  Bonds  oi  Submiffion,  that 
they  fhould  be  made  a  Rule  of  the  Court  of  Kings-Bench,  as  is  now  done 
with  Refpeft  to  Awards,  in  common  Arbitrations. 

Most  of  our  Litigations  turn  upon  difputed  FaEls:  and  thefe,  as  well  as 
Perfons,  Papers,  Evidences,  &c.  would  be  much  more  fpeedily  and 
effeftually  difcovered,  and  examined,  than  can  be  done  by  Means  even  of  all 
the  Courts  of  Law  and  Equity  together  (whofe  tardy  and  intolerably 
€x/(?M/^z/^  Operations  abfoIutely/rw/Zriiiif  this  neceffary  End)  and,  therefore, 
ill-defigning  and  fraudulent  Perfons  would  be  kept,  by  the  Method  propofed, 
in  greater  Awe  ;  and  few,  except  fuch,  would  be  indifpofed  to  contribute  to 
the  Support,  and  to  refer  themfelves  to  the  A.uthority  of  fuch  an  amicable 
Judicature. 

Parties,  not  annual  Subfcribers,  might  be  admitted  to  recur  to  it  occa- 
fionaily, paying  a  flipulated  Sum,  or  fuch  neccjfary  Charges,  by  Way  of 
Coffs,  as  fhonld  be  awarded  by  the  Judicatory  : — whofe  DifcufTions  and 
Determinations,  however  defeftive,  and  even  erroneous  they  might  fomctimes 
be ;  yet  it  is  highly  probable  they  would,  in  general,  be  lefs  fo,  and  lefs 
unequitable  (for  the  Reafons  before  mentioned)  than  jnany,  in  Infurance 
Cafes.,  which  now  fland  on  Record  in  Courts  of  Law  :  to  which,  however, 
a  Recourfe  might,  flill,  be  left  open,  in  Cafes  of  abfolute  Need,  and  very 
great  Confequence,  or  Intricacy,  as  already  intimated ;  and  the  Parties  ena- 
bled, at  leafl,  to  go  thither  much  better  prepared,  to  obtain,  at  once,  a 
jufl  and  final  Decree. 

The  Necejfity,  Advantage,  and  general  Convenience  of  an  Inflitution  of  the 
Kind  here  fuggefted,  are  too  obvious  to  be  denied, 

F  I  AM 


xxii  PRELIMINARY     DISCOURSE.' 

I  AM  aware  of  the  Objeftions  which  might  be  ftarted,  with  Refpeft  to  fuch  an 
AMICABLE  Judicature  as  I  have  propofed  ;  but  they  might  be  foon  remo- 
ved, with  proper  DeUberation : — the  Knowledge  and  Praftice  of  the;z^ 
Principles  of  Infurance  would  naturally  become,  thereby,   more  generally 

difu/ed: and  ihek  brief  Hints,  if  taken  up  with  fome  Degree  of  Public 

Spirit,  by  fage  and  judicious  Men,  might,  undoubtedly,  be  greatly  improved, 
and  foon  carried  into  very  good  Effeft  : — in  which  I  prefume  to  think  that 
what  I  (hall  have  further  to  offer  might  prove  of  no  inconfiderable  Afliftance. 

For,  as  to  the  common  Mode  of  Arbitratioii,  of  three  Perfons,  who  are 
ufually,  or  often,  chofen  as  being  interelled,  biaffed,  or  predetermined 
Friends ;  it  fiiould  feem,  at  prefent,  from  the  continual  and  direft  Refort  of 
Merchants  and  Infurers  to  Courts  of  Law,  that  Matters  are  come  to  fuch  a 
Pafs  that,  except  in  Affairs  of  very  fmall  Moment,  they  can  neither  rely 
on  the  Knowledge,  the  Experience,  nor  the  Impartiality  of  each  other ; — ■ 
and,  therefore,  that  Litigation  is  become  fo  rife,  there  is  a  Neceffity,  how- 
ever ftrange  it  may  appear,  for  the  almoft  daily  Attendance,  which  may  be 
obferved,  efpecially  in  Term  Time,  of  no  lefs  than  4  or  5  Attornies  at 
Lloyd's  Coffee- Hoife  ! — What  a  Degradation  is  this  of  mercantile  Charafter 
and  Abilities,  even  in  a  fingle  Branch  of  Commerce  !  '■ 

Prevention  is,  howevei",  on  all  Occafions,  better  than  Cure: — and 
the  moft  effeftual  Way  of  preventing,  in  any  Refpeft,  the  Evils  herein 
mentioned  is,  for  every  one  to  endeavour  to  attain  a  clear  Comprehenjion  of 
the  feveral  Matters  that  relate  to  the  Undertakings  which  he  engages  in, 
and  of  the  true  Principles  by  which  they  are  governed ;  without  which  he  had 
better  not  embark  at  all,  and  more  efpecially  in  the  very  dangerous  Affairs  of 
Infurance  ;  in  Order  that  every  one  may  imbibe  the  fame  uniform,  and  con- 
fijlcnt  Notions  and  Rules  concerning  them  ;  which  is  far,  very  far  from 
being  the  Cafe,  except  in  a  few  very  common  Inflances. 

On  the  Contrary,  many  Perfons  become  Underwriters  and  Infurance 
Brokers,  efpecially  in  Time  of  War,  or  Hoflilities,  without  any  previous 
Knowledge  whatever  of  the  Kind  that  is  requifite  to  qualify  them  ;  and  feve- 
ral, who  have  aftually  employed  themfelves  in  thofe  Capacities  many  Years, 
and  fome,  during  even  the  greater  Part  of  their  Lives,  having  always  been 
either  of  a  too  indolent  and  inattentive  Caft,  or  too  deeply  immerfed  in  the 
Bufinefs  itfclf;  being  more  bent  on  the  Quantity  than  the  Propriety  of  it ; 
or,  being  defective  in  commercial  Education,    Difcernment  or  Capacity ; 

'' "-  have 


PRELIMINARY     DISCOURSE,  xxiii 

have  never  given  themfelves  the  Trouble  to  enter  into  a  proper  Difcrimina- 
tion  of  the  Circumftances  of  the  various  Matters  which  came  before  them ; 
nor  of  the  Rules,  DoElrines,  or  Laws  applicable  thereto. 

We  fee  not  a  few  Inftances  even  of  Trade/men,  Shopkeepers,  &c.  lured  by  the 
golden,  but  delufive  Bait  of  A't'/wmw^,  efpecially  in  Time  o^War,  drawn 
like  Gudgeons,    into  the  Vortex  of  this  perilous  Abyfs,    Infurance  ;    from 

which  they  can,  rarely,  afterwards  extricate  themfelves ; for,  engaging 

as  Underwriters,  with  an  intire  Deprivation  of  that  Sort  of  Skill,  and  general 
Intelligence  of  commercial  and  maritime  Affairs  which,  befides  what  pecu- 
liarly belongs  to  Infurance,  are  requifite  to  form  a  judicious  Infurer ;  Tkey, 
in  particular,  muft  at  all  Times  be,  inevitably,  expofed  to  every  Danger, 
every  Artifice,  and  every  Impofition  ;    if  not  devoted  to  certain  Deffruc- 

tion. To  fuch  of  them,    however,    who  are  already  engaged,    and  who 

are  refolved  to  perfift  in  Underwriting,  the  inftrufting  themfelves  in  the 
general  Principles  of  Infurance  muff  be  ferviceable : — to  thofe  who  are  not, 
it  is  advifeable,  by  all  Means,  to  keep  out  of  the  Way  of  almofl  infallible 
Hurt  to  themfelves  and  Families: — and  to  reft  content  with  their  Acquire-" 
ments,  in  a  Road  more  fuitable  to  their  accuftomed  Line  of  Life ;  or  to 
enjoy,  with  Tranquility,  the  Comforts  to  be  drawn  from  them,  in  Retire- 
ment;   without   lanching   into   what,  in  all   Probability,   they  never   will, 

nor  ever  can  properly  underftand. There  are  Inftances  of  fome  of  thefe 

Gentlemen,  fo  uninformed  of  thefe  Matters,  as  to  fign  their  Partner- 
Jhip  Firm  to  Policies  ; — alfo,  of  Brokers  and  Infureds,  who  know  not  that 
the  underwriting  of  Policies  of  Infurance  "  on  the  Account  or  Rifque  of  Per- 
fons  afting  in  Partnerftiip"  (except  the  two  incorporated  Companies)  is  pro- 
hibited, hy  Statute,  6  Geo.  i.  c.  18;  dind.  void  prima  Facie. 

And,  with  Refpeft  to  thofe  Gentlemen  who  may  be  ambitious  to  become 
what  are  called  great  Underwriters ;  eager  to  take  the  Lead ;  to  begin, 
or  fubfcribe  almoft  every  Policy  that  prefents  itfelf,  and  to  be  the  Jirfl  to 
fettle  Loffes,  Averages,  &c.  it  would  not  be  to  their  Difcredit,  but  might  be 
well  for  themfelves,  and  far  lefs  injurious  to  others,  if  they,  previoufiy, 
made  themfelves  converfant  with,  at  leaft,  the  general  Rules,  fettled 
DoSirines,  Laws,  Ufages,  and  decided  Cafes,  relative  to  thofe  Matters: 
fince  there  needs  be  noHefitation  to  fay  that,  within  our  own  Remembrance, 
there  have  been  fome  of  fuch  Underwriters,  who  made  but  an  indifferent 
Figure,  from  their  great  Deficiency  in  fuch  neceflary  Knowledge :— and, 
if  they  would   alfo   give  fome  Attention  to   Papers,   Documents,    Proof, 

and 


xxiv  PRELIMI  NARY     DISCOURSE. 

and  enquire  into  Facts,  they  would  neither  be  themselves  fo  liable 
to  be  plunged  into  irremediable  Mifchiefs ;  and,  finally,  to  become  Vitlims 
o^ their  omi  Unjkilfulne/s  and  Credulity;  whkh  are  coniiant  Incitements  and 
Invitations  to  Malpradices ;  nor  be  the  Means  of  entangling  others,  who 
either  blindly  tread  in  their  Steps,  or  purely  for  the  Sake  of  Tranquility, 
and  avoiding  Difpute,  though  often  intirely  againft  their  better  Judgment, 
and  even  certain  Conviftion,  fubmit  to  follow  and  confirm  their  weak, 
imprudent,  and  very  hurtful  Precedents. 

Such  Underwriters,  ever  open  at  all  Points,  mufl  abfolutely  be  the  very 
Eleci  of  all  Fortunes  Favourites  if,  upon  the  winding  up  and  ultimate  Clofe 
of  an  Account,  which,  during  a  few  Years,  (hall  have  been  hourly  fo  fliAc- 
tuating,  and  complicate,  as  to  be  always  utterly  incomprehenfible,  and 
probably  never  infpe6led,  even  by  themfelves,  the  Balance  thereof,  efpecially 
upon  the  Termination  of  a  War,  like  the  prefent,  fliould  not  prove, 
heavily,  on  the  ruinous  Side ;  after  having  not  only  finiftied  the  Career  of  a 
fantaftick  Repute  ;  but  alfo  infenfibly  facrificed,  what  ought  to  be  held  much 
dearer,  their  Health,  by  an  incefiant  Refpiration  of  tlie  pcfl:iferous  Air  of 
Lloyd's  Rooms. — Such  an  Account  may,  not  unaptly,  be  compared  to  a 
Canal;  whenfoever  it's  Supply,  of  high  Premiums,  as  during  a  War,  ceafes, 
it's  Difcharge,  on  a  Return  of  Peace,  by  the  Drain  of  Loffes,  Averages, 
Returns,  Allowances,  Difcounts,  Douceurs,  Sec.  foon  leaves  it  exhaufl:ed. 

In  Truth,  if  this  Bufinefs  were,  in  general,  better  underflood;  and  carried 
on  with  more  Propriety,  Regularity,  Temper,  and  Honour,  on  all  Sides ; — 
were  Errors,  when  difcovered,  or  pointed  out,  readily  and  fairly  corre6ted ; — 
Frauds  more  endeavoured  to  be  detected ;  and  when  fo,  the  Parties  guilty  of, 
countenancing,  or  fecreting  them,  duly  punifhed,  or  ftigmatlzed ;  every 
Thing  would  proceed  with  more  Facility,  more  mutual  Satisfaftion  and 
Harmony,  and  unfpeakably  more  for  the  general  and  true  Interefl  of  all  Per- 
fons  concerned. 

But,  whilfl  Things  are  fufFered  to  go  on  as  they  do,  the  Confequence xrm^ 
flill  be,  as  it  has  already  hetn,  fatal,  not  only  to  many  Infurers ;  but  even 
thofe  very  Merchants,  Infureds,  and  Brokers,  Avho  exercife  and  promote  the 
irrational,  erroneous,  and  culpable  Proceedings  herein  adverted  to,  do,  and 
muft  frequently  feel,  in  the  End,  the  like  ill  Efiefts  thereof  recur  upon' 
themfelves. 


On 


PRELIM  IN  ARY     DISCOURSE.  xxv 

On  the  Contrary,  were  fair,  equitable,  and  correft  Rules,  Methods,  and 
Principles  invariably,  or  commonly  purfued,  it  would  not  only  be  for  the 
Advantage  of  our  Commerce  in  general ;  but  would,  unqueftionably,  render 
the  Security  of  private  Underwriters  much  better  than  it  is,  or  ever  can  be, 
by  the  prefent  abfurd,  catching,  and  overreacking  Modts  of  Praftice : — for, 
the  Defeft  of  Qualification,  Penetration,  or  Attention,  which  is,  in  general, 
too  manifeft  on  the  one  Hand,  is  fo  fure  a  Temptation  and  Encouragement  to 
reiterated  Malverfations  on  the  other,  that  all  together  continually  cooperate 
to  the  certain  Danger,  and  Damage  of  ^//  Parties, 

There  is  fcarcely  any  other  Occupation,  or  ProfeOTion,  though  far  more 
unimportant,  and  lefs  abftrufe  or  complicate  than  that  of  Infurance,  amongft 
the  whole  Circle  of  Arts  and  Commerce  exercifed  in  this  Kingdom,  where 
fome  Method  of  InJlruElion  is  not  looked  upon  as  requifite  ;  and,  where  the 
Perfons  employed  in  it  are  not  pretty  well  verfed  in  the  Grounds  and  Theory, 
and  the  greater  Part  of  them  expert  in  the  Pra6liceoHh&  Principles  on  which 
it  ought  to  be  profecuted : — but,  one  may  venture  to  affert  that,  in  no  other 
Clafs  is  there  to  be  perceived  fo  great  a  Proportion  of  a  numerous  Body  of 
Praftiiioners,  who  are  fo  incompetently  (killed  in  the  Nature  of  the  Matters 
about  which  they  are  occupied,  and  of  the  Laws,  and  Rules,  by  which  they 
ought  to  be  governed,  as  amongfl;  thofe  who  are  in  the  aftual  Employment 
of,  and  whofe  Avocations  and  Concerns  are  immediately  connefted  with. 
Affairs  of  Infurance  : — and,  hence  it  happens  that  although,  in  the  tran- 
fafting  them,  there  is,  undoubtedly,  much  real  Fairnefs  and  Honour  ;  yet 
there  is  alfo,  undeniably,  a  great  Deal  of  mere  Pretence  of  thefe  ;  and 
much  infignificant  Talk  of  honeft  Connexions,  &c.  which,  upon  a  Scrutiny, 
would  often  be  found  to  ferve  as  a  Cloak  for  Subtilty  and  FineflTe ;  and 
that,  in  Faft,  no  other  Bufinefs  whatever  is,  on  the  whole,  conduced, 
or  rather  JJiicffled  through,  with  fo  much  Precipitancy,  Fallacy,  and  Injujlice. 

But  it  is,  indeed,  to  be  lamented  that  the  general,  and  moft  diflinguifhed 
Features  of  the  prefent  Times  are  Frivoloufnefs,  Oftentation,  and  Rapacity  ! 
— the  public  Mind  is  debafed  with  Duplicity  ;  and  almoft  dead  to  all  Exer- 
tion, and  even  Conception  of  rational,  folid,  comprehenfive  Principles  of 
Aftion  : — Every  Thing  is  become  Matter  of  Chance,  or  full  of  Collufwn,  in 
the  greater  Part  of  the  Purfuits  and  Tranfa6lions  of  Life  ;  and  They  who 
come  off  the  mod  fuccefsful,  in  thefe  Refpefts,  are  the  moft  efteemed  : — and, 
therefore,  very  few,  comparatively,  are  They  who  at  all  concern  themfelves 
about,    or,    indeed,    find  fuflicient   Incentives   to    aim  at,    any  Degree  of 

G  Judgment, 


xxvi  PRELIMINARY     DISCOURSE. 

Judnnent,  much  lefs  to  excel,  in  the  KnozoleJge  of  Things  appertaining 
to  their  particular  Profeffion,  or  Station  .-In  fhort,  Men,  in  general,  of  every 
Rank,  arc  led  away,  governed,  inthralled  by  7»^r^  Opinion,  and  fpeciou^ 
or  pmipous  Appearances :— few  think  for  themfelves :— and  many  will  not  fee, 
even  the  moft  palpable  Abfurdities  and  Fallacies,  'till  they  feverely  feel  the 
Effefts  of  them  ;  and  have  alfo  involved  others  in  equal  Calamity, 

It  is  in  this  prevalent  Futility  and  Venality,  this  marked  Chara^er  of  the 
Age,  that  lies  the  real  Cause  of  all  the  Diforders,  all  the  Misfortunes, 
under  which  this  Nation,  coUeaively,  as  well  as  individually,  now  labours; 
and  they  will  not,  cannot  ceafe,  until  fome  preeminent  Genius,  of  innate 
Honejly,  intirely  regardlefs  of  Party,  Prejudice,  and  Self-Intereft,  (hall  arife, 
to  rouze,  reanimate,  and  reinvigorate  the  native  Senfe,  and  manly  Spirit  of 
our  Countrymen  ;  which  have  been,  for  fome  Time  paft,  drooping,  under  the 
Influence  of  corrupt,  delufive,  and  grovelling  ExA^fPLE,  in  almoft  every 
Clafs ;  and,  by  ftriking  at  the  Root  of  predominant  Crimes  and  Follies, 
reflore  the  long  loft,  but  rightful  Sovereignty  of  Common  Sense. 

The  grand,  and  moft  effential  Point  to  be  guarded  againft,  in  all  Matters 

of  Infurance,  is  Fraud. Under  this  Term  is   comprehended  not  only 

every  direft,  intentional,  and  palpable  Deceit,  Cheating,  and  Impoftion  ;  but 
alfo,  and  as  having  the  fame  Effect,  or  Tendency,  every  Kind  of  Collufon, 
Mifeprefentation,  Equivocation,  Concealment,  Refervation,  and  every  De- 
parture from  T/wi'A,  din  A  good  Faith  : — for  thefe  ever  have  been,  are,  and  ever 
will  be  praftifed,  in  a  vaft  Variety  of  Modes,  and  Degrees,  by  a  great 
Number  of  Perfons,  who  are  either  immediately,  or  indirectly  interefted, 
or  conne61ed  with  thofe  whofe  Interefts  are  benefited  by  the  Perpetration  of, 
or  ferved  by  a  Connivance  at  them. 

The  very  Nature  and  latent  Circumftances  of  Infurance,  more  efpecially 
in  Time  of  TlY7r,  or  Hoftilities,  afford  but  too  conftant  Temptations,  and 
too  frequent  Opportunities,  fcarcely  to  be  refifted  by  Men  not  of  ftricl 
Honour  and  Principle,  in  almoft  every  Cafe,  for  the  Commiffion  of  thofe 
Crimes ;    and   for  taking,  in  fome   Shape  or  other,    undue  Advantages  of 

Infurers. And  the  Experience  of  all  former  Times,  in  all  Countries,  even 

whilft  Matters  of  Infurance  were  limited  to  very  narrow  Bounds,  has  fticwn 
the  Neccfjity  there  always  was  of  ufing  Means  of  Dete&ion,  and  enafting  Laws 
for  the  Prevention,  or  Punifliment  of  them  :  and,  in  Faft,  all  thofe  Parts 
of  the  Foreign  Ordinances,   which  relate  to  Infurance,   have  thefe  Obje6ls 

chiefly 


PRELIMINARY     DISCOURSE.  xxvii 

chieOv  in  View. — The  few  Statutes  which  have  been  made  in  England, 
exprefly  concerning  Infurance,  are  likewife  principally  direftcd  to  the 
fame  End. 

And,  indeed,  fo  unavoidably  expofed  to  thofe  Evils  is  the  Situation  of 
Infurers,  notwithftanding  the  utmoft  Precautions  which  they  may  be  able  to 
ufe,  that  they  ought,  unqueftionably,  to  have  all  the  Proteftion  and  Aid 
againfl:  them,  that  is  in  the  Power  of  Government,  and  the  Laws  to  fupply, 

and  of  every  judicious  and  honefl  Man  to  contribute  : for,  otherwife, 

the  Property  of  every  Individual  of  a  large,  ufeful,  nay,  indifpenfibly  necef- 
fary  Body  of,  in  general,  the  mod  liberal,  honourable,  and  confiding  Men 
in  the  whole  commercial  World,  would  be  conftantly  at  the  Mercy  of  an.Infi- 
nity  of  enierprijing  and  crafty  Perfons,  of  divers  Denominations,  through 
the  extenfive,  and  almofl  indefinite  O'^exdiiion  of  Policies  of  Infurance;  and 
efpecially  the  artful,  and  enfnaring  Manner  in  which  the  zoritten  Claufes  of 
them  are,  now,  frequently  worded. 

We  find  it  remarked,  long  ago,  by  Gerard  Malynes,  even  when 
Commerce  and  Infurance  might  be  faid  to  be  but  in  their  Infancy,  in  this 
Country,  that  "  AITurers  are  very  fitly  compared  unto  Orphans  ;  becaufe  they 
may  endure  much  Wrong,  but  cannot  commit  any." — Lex  Merc.  p.  107. — 
And,  RiCARD,  inhisNEGROCE  d*  Amsterdam,  quotes,  from  the  famous 
Quintin  Wysten,  who  wrote  a  Treatife  on  Averages,  that,  "the  Infureris 
regarded  by  all  as  a  Pupil:  that  is  to  fay,  that  they  are  prote6led  in  Juftlce, 
as  Orphans ;  and  never  condemned  to  the  utmoft  Rigour: — and  he  advifes 
all  thofe  who  have  any  Difference  with  them  to  agree  it  amicably ; — for, 
that  Infurers  had  always  rather  grant  Something  than  be  profecuted,  becaufe 
this  makes  them  decried  as  Wranglers ; — but,  if  too  much  is  demanded  of 
them  under  this  Belief,  they  rather  chufe  to  go  to  Law  ;  in  which,  it  muft  be 
confefTed,  they  are  not  quite  wrong." 

But,  with  how  much  more  Reafon  might  thefe  Obfervations  be  applied 
in  later,  and  efpecially  in  the  prefent  Times ;  when,  by  Means  of  the  extra- 
ordinary Increafe,  and  Variety  of  novel  Circumflances,  of  our  Commerce, 
and  confequently  of  Infurance ;  the  Extent  of  our  Navigation  ;  and  enter- 
prifing  Genius  of  our  Merchants ;  not  to  mention  the  Recourfe  continually 
had  to  very  great  Amounts,  from  the  Merchants  of  all  other  Countries, 
to  the  Infurers  in  England;  together  with  \\\t  precipitate  dLV\d. fiovenly 
Manner  in  which  the  Bufinefs  of  Infurance  is,  in  general,  executed;  Under- 
writers 


xxvlii  PRELIMINARY    DISCOURSE. 

writers  are  not  only  liable  to  every  Sort  of  Fallacy  and  Perfidy,  which  the 
Ingenuity  and  Corruption  of  Mankind  can  contrive  and  put  in  Praftice ; 
—but,  even  to  be  wfulted  with  the  Epithet  of  litigious,  if  they  com- 
plain of  it. 

It  is  not  a  long  Time  fince  an  eminent  Merchant,  in  London,  received 
Orders,  at  different  Times,  from  a  Man,  in  Holland,  to  make  Infurances, 
on  Ships,  &c.  which  never  exified ;—and,  by  Means  of  Oj/Zm/owj  with  pre- 
tended Mafters,  and  other  Perfons,  y^/^  Protefts,  Affidavits,  &c.  fent  from 
thence,  they  fucceeded,  through  the  known  Facility  of  our  Underwriters,  in 
recovering  fome  confiderable  Sums,  as  Loffes. — I  have  been  told  that  other 
Houfes,  in  England,  have  alfo  detetled  fimilar  Frauds. 

The  enormous  Circumftances  of  the  late  Affair  of  the   Friend/kip,  

D y,  Mafler,  bound  from  Cadiz,  for  London  (wrecked  off  the  Bar 

of  Li/ion)  wkh  falfe  Bills  of  Lading,  as  for  a  great  many  Thoufand  Pounds 
Value  on  Board,  in  Dollars,  Cochineal,    &c.    which   were   never  fiiipped, 
though  infured  in  London,  Amjlerdam,  &c.   are  too  recent,  and  univerfally 
known,  to  need  any  Detail. 

It  has  always  been  a  conflant  Ride,  eftablifhed  and  confirmed  by  a  great 
Number  of  Determinations  in  our  Courts,  with  Regard  to  all  Policies  of 
Infurance,  That  "  the  Sugge/liofial/i,  or  Sup prcjjioveri,  i.e.  Mifreprefentation, 
or  Concealment^  of  any  one  or  more  Circumftances,  relating  to  the  Rifque, 
and  which  might  be  material  for  the  Infurerto  form  his  own  Judgment  upon, 
makes  void  the  Policy." — for.  That  "thofe  Things  are  to  be  confidered 
in  the  Situation  of  them  at  the  Time  of  the  Contraft,  and  not  to  be  judged 
of  by  fub/equent  Evems." — Cleeve  and  Ga/coigne ; — Seaman  v.  Fonnereau; — 
Green,  v.  Bozvden  ;  and  many  other  Cafes. — And  Lord  Mansfield,  in  ex- 
plaining this  Doftrine,  very  fully,  in  a  remarkable  Cafe,  Carter  v.  Boehm, 
Eaft.  6  Geo.  3,  expreffed  the  following  Words ;  viz, — '*  Ihtfipecial  Fa6ls, 
upon  which  the  contingent  Chance  is  to  be  computed,  lie  moft  commonly 
in  the  Knoxoledge  of  the  Infured  only ;  the  Underwriter  trufts  to  his  Repre- 
fentation  ;  and  proceeds  upon  Confidence  that  he  does  not  keep  back  any 
Circumftance  in  his  Knowledge,  to  miflead  the  Underwriter  into  a  Belief 
that  the  Circumftance  does  not  exift,  and  to  induce  him  to  cfiimate  the 
Rifque,  as  if  it  did  not  exifi.  The  keeping  back  fuch  Circumftances  is  a 
Fraud ;  and  therefore  the  Policy  is  void. — Although  the  Suppreffion  fliould 
happen  through  Mt/lake,  without   any  fraudulent  Intention ;  yet,  ftill  the 

Underwriter 


PRELIMINARY     DISCOURSE.  xxix 

Underwriter  is  deceived,  and  the  Policy  is  void  ;  becaufe  the  Rifquc  run  is 
really  different  from  the  Rifque  underjlood,  and  intended  to  be  run,  at  the 
Time  of  the  Agreement. — The  Reafon  of  the  Rule  which  obliges  Parties  to 
difclofe,  is  to  prevent  Fraud,  and  to  encourage  good  Faith.  It  is  adapted 
to  fach  FaEls  as  vary  the  Nature  of  the  Contraft  ;  which  one  privately  knotvs, 

and   the  other  is  ignorant  of,    and  has  no  Reafon  to  fufpeft." "  The 

Oueftion,  therefore,  mull  always  be.  Whether  there  xoas,  under  all  the  Circuvi- 
Jlances,  at  the  Time  the  Policy  was  underzvritten,  a  fair  Reprefcntation ;  or  a 
Concealment ;— fraudulent,  if  dejigned ; — and  though  not  dejigned,  varying 
materially  the  OhjeEl  of  the  Policy;  and  changing  the  Rifque  underfood  to 
be  run." 

Now,  whoever  is  acquainted  Muth  the  loofe,  hajly,  and  often  crafty 
Manner  in  which  Infurances  are  effefted  in  Lloyd's  Coffce-Hoife  ;  and  con- 
fiders  the  frequent  Want  of  Penetration,  Judgment,  ox  Attention,  on  the  Part 
of  Infurers  ;  and  of  Explicitnefs,  or  right  Information,  on  the  Part  of  Alfureds 
and  Brokers ;  and  efpecially  the  affcEled  Ignorance,  Silence,  and  Indifference, 
or  apparent  Confidence  of  the  latter,  as  to  material  Fafts  and  Circumflances, 
on  fame  Occafons ;  and  their  Infinuation,  Plaufibility,  and  ar^w/ Diverfifi- 
cation  of  them,  on  others ;  mufl  be  perfe6lly  convinced  of  the  great  and 
conftant  Danger  of  Deception,  in  the  very  firfi  hftance,  by  the  ufual 
Method  of  mere  wr3a/ Communications. — ^ — Therefore,  the  Mode  of  repre- 
fenting  Circumflances  to  the  Infurer  ought  always  to  be,  as  far  as  micrlit 
be  prafticable,  in  Writing,  either  upon,  or  annexed  to  fome  Part  of  the 
Policy  itfelf ;  containing  an  Extraft,  or  Minutes  of  every  material  Circum- 
ftance  and  Intelligence  whatever  concerning  the  Rifque  :  which,  fo  far 
from  being  liable  to  any  Difficulty,  or  Trouble,  as  might  be  pretended, 
would  on  the  contrary,  be  quite  eafy  in  Praftice ;  and,  not  only  very 
much  facilitate  thefe  Tranfaftions,  by  rendering  Interrogatories  unneceffary, 
as  certainly  they  ought  to  be ;  but,  alfo  prevent  that  juft  Sufpicion, 
which  there  is,  at  prefent,  fo  much  Need  of  keeping  continually  awake, 
at  the  Time  of  underwriting  Policies ;  as  well  as  the  Room,  which  is  now 
left  to  Brokers  and  Affureds,  afterwards  to  deny,  or,  at  leaf!,  forget, 
their  Concealments  and  Mifreprefentations. 

And,  notwithflanding  I  do  not  mean  to  enter,  in  this  Place,  upon  ^o 
delicate,  although  very  interefling  a  Part  of  my  Subjeft,  except  in  a  gene- 
ral Manner ;  yet  Truth,  Jujlice,  and  the  common  Good  demand,  and  render  it 
indifpenfibly  requifite,  to  animadvert,  with  fome  Degree  of  Earnellnefs,  on 

H  what 


XXX  PRELIMINARY     DISCOURSE. 

^vhat  is,  undoubtedly,  the  Canker- Worm  that  corrodes,  and  undermines  the 
mutual  Intereft  and  Welfare  of  Mankind,  throughout  almoll  every  Depart- 
ment of  Life ;— and  in  none  of  the  Concerns  of  it  whatfoever  fo  much  as  in 
Affairs  of  Infurance  :— I  mean  Fraud!— or  Deceit  l—Z'r^W/— the  Com- 
pofition  of  every  Thing  that  is  bafc,  nefarious,  and  d'mhoVic -.—Deceit  .'— 
the  deadly  Bane  of  all  Confidence,  Goodwill,  and  Harmony  in  Society  :— 
and,  therefore,  in  all  Tranfaaions  of  Infurance,  in  particular,  there  ought 
to  be  a  conftant  Jealoufy  of,  and  lively  Attention  to  them ;  and,  in  every 
Indance  \vhere  they  appear,  or  can  be  difcovered,  the  Parties  concerned  in 
them  ought  not  to  efcape  that  Stigma,  and  Deteltation,  which  are  judly  due  to- 
them ;  not  onlv  as  it  regards  the  Perfons  and  Affairs  immediately  in. 
Queftion, — but  as  a  Terror  and  Prevention  in  future. 

And,  it  would  be  well,  and  highly  proper,  if  the  Law  were  much  lefs 
defeclive  than  it  is,  with  Regard  to  providing  an  adequate  Punijhment,  in 
all  Cafes  o^  clear  and  pofuive  Fraud,  or  Deceit,  in  Matters  of  Infuranee : — 
but,  as  the  Law  (lands  at  prefent,  except  in  a  very  few  Inftances,  every 
artful,  and  diftionelt  Adventurer  has  it  continually  in  his  Power  to  rob  Infurers, 
with  Impunity,  even  if  detefted  : — fmce,  if  he  happens  not  to  fucceed,  in  his 
original  Attempt,  by  Concealment,  Mifreprefentation,  &c.  in  making  the 
Infurance ;  or,  by  fallacious  Papers,  collujive  Evidence,  &c.  when  he  goes 
to  Trial  : — he  fuffers  no  other  Hurt  than  the  vacating  his  Policy ;  and  is  in 
general  fure  of  obtaining  a  Return  of  the  Premium ;  which  is,  ufually, 
paid  into  Court,  on  fuch  Occafions  ;  whilfl  the  Underwriter  is  infallibly 
damnified  in  a  Part  of  the  Cofts,  heavy  Fees  to  Council,  &c.  although  he 
may  prove,  ever  fo  demondratively,  that  he  has  been  violently  deceived  and 
impofed  upon. 

A  Law,  therefore,  ought  to  be  made,  inflifting  Penalties,  if  not  worfe,  on 
every  Perfon,  of  whatever  Quality  or  Denomination,  guilty  of  grofs  and  evi- 
dent Fraud,  Deceit  or  Craft ; — as  is  wifely  enafted  by  the  Ordinances  of 
fundry  foreign  maritime  States ; — where,  all  Perfons,  including  Infureds, 
Captains,  Shippers,  &c.  fo  guilty,  "  {liall  not  only  reap  no  Advantage, 
of  their  Fraud  and  Deceit;  but  fhall,  befides,  be  obliged  to  make  good  all 
LofTes,  Damage,  and  Intereft,  occafioned  by  them ;  and  be  publickly,  and 
corporally,  chaftifed  and  punifhed,  for  a  Terror,  and  Example  to  others ; 
nay,  even  with  Death,  as  Pirates,  Public  Robbers,  and  manifeft  Thieves,  if 
it  be  found  that  they  have  ufed  notorious  Malverfation,  or  Craft,"  —  Ordi- 
nances of  Middleburg,  and  Amjlerdam. 

Again; 


PRE  LI  M  I  NARY    DISCOURSE.  xxxi 

Again  ; — "  Any  Pcrfon  foever  making  Ufe  oS.  Artifices,  Fraud,  and  Fallacy, 
in  any  Matter  o^  Infiirance,  or  Average,  fhall  not  only  make  good  to  all 
Parties  concerned  all  the  Inconveniences,  and  Damages,  they  may  have 
received  thereby  ;  but  likewife,  on  Account  of  his  Offence,  fhall,  according 
to  the  Circumjlances  of  every  particular  Affair,  and  the  Prefcription  of  the 
Penal  Laws,  enaftedin  our  Ordinance  againft  Criminals,  ht  punijliedin  his 
EJlate,  Honour,   and  Life." — Ordinance  of  Stockholm* 

And,  again; — "  If  any  one  that  is  affured\\imk\^,  or  a  fworn  Broker,  or 
any  Mqjler,  Mates,  and  Seamen,  fliould  di^  fraudulently  ;  and,  with  Delign, 
Deceit,  or    out  of  Wantonnefs,    impofe   upon  the  Affurers,   either  in   the 
Contraft,  or  Policy  of  Affurance  itfelf ;  or  aft  difwnejily  by  the  Ships,  Goods, 
Cargoes,  that  are  infured,  and  run  them  into  extraordinary  Hazards,  whereby 
the   Affurers   become   to  be  Lofers ;    fuch  a  Cheat  and  Impoftor,  if  any 
malicious  Intention  can  be    proved  againft  him,    fliall  not  only  be  liable  to 
make  Satisfaftion  for  all  Loffes,    Damages,    and  Charges,    although  the  Lofs 
did  NOT  adually  happen;  but  more  particularly,    when  a  real  Prejudice  is 
arifen  from  it ;  —  but  fhall,  moreover,  according  to  the  Nature  and  Circum- 
ftances  of  the  Crime,    be  profecuted,    as  a  Criminal ;    and  fuffer  fuch  exem- 
plary Punilhment  as  the  Law  ffiall  inflift." — Ordina?ice  of  Hamburg. 

Seeing,  therefore,  that  thefe  Enormities,  do  indifputably  and  univerfally 
occur;  and  are,  in  the  prcfent  Times,  too  notorioufly  pradifed  to  pafs 
unnoticed ; — the  Nature  of  them,  and  of  my  Delign  in  what  I  fhall  have 
further  to  offer  to  the  Confideration  of  the  Reader,  in  the  Sequel  of  this 
Difcourfe,  does  not  admit  of  being  too  fparing  in  thefe  Striftures  ;  nor  over 
nice  in  confidering  who,  or  what  Perfons,  in  particular,  may  fuppofe  them- 
felves  thereby  affe6led : In  Truth,  I  believe,  there  are  too  many  con- 
cerned in  the  bafe  Pra6lices  alluded  to,  for  any  Perfon  to  imagine  that 
He  in  particular  is  pointed  at;  and,  therefore,  none  can  be  offended  but 
thofe    who   are   too   confcious   of  their  Culpability: — "Qui    capit,    ille 

TACIT." 

It  may,  perhaps,  be  fuppofed,  by  fome  honourable  and  unfufpeclino- 
Readers,  that,  with  Pvcfpect  io  fraudulent,  or  deceitful  Fradices,  Thefe  c<in, 
furely,  happen  only  amongfl  Perfons  of  no  Charafter,  Eftimation,  or 
Rank  : — but,  however  reluftantly  it  be  faid,  it  is  neverthelefs  true,  that  there 
are  not  wanting  feveral  Inftances,  which  might  eafily  be  produced,  of  Perfons, 
in    different    Places,    wlio,    although   they   pafs    for   Merchants,    Ozoners, 

Freighters^ 


PRELIMINARY     DISCOURSE. 

Freighters,  Mojlcrs,  &c.  of  eftablidied  Reputation,  fcruple  not,  for  intereaed 
andlvaricious  Purpofes,  to  avail  themfelves  of  the  prevalent  Opinion  of  them, 
and  the  well-known  Credulity  and  SupiNENESs  oflnfurers,  to  be  guilty  of 
very  foul  Deceit  and  Craft ;— whilfl  the  injured  Underwriter,  fometimes  even 
^vith  his  Eyes  open,    fettles,    pays,     and  moft  wrongfully  parts    with   his 
Property  ;    not  chufing  to  contefl  againft  the  common  Prejudice  in  Favour  of 
fuch  Peifons,  or  the  FarLiality  of  Infurance  Brokers;   whofe  private  Intereft 
and  Conneaions,  too  often,  induce  them  to  aid,  fmother,    or  wink  at  fucli 
Proceedings.— There  are  alfo  Inftances  of  Underwriters,   themfelves,    who 
fometimes  eafily  acquiefce  with,    and  connive  at  fallacious  Adjuflments,  for 
the  Purpofc  of  taking,  as  Affureds,  the  like  unjull  Advantages  on  their  own 
Policies. 

Hen'ce,  it  is  not  wonderful  that  divers  Perfons,  in  fundry  Parts,  fhould 
be  endeavouring,  by  various  indirect  Means  and  Manoeuvres,  to  enrich 
themfelves,  and  fome  of  them  but  too  well  fucceed,   by  the  Plunder  of  Infu- 

rers. It  would,   indeed,   be  impofiible  for  fuch  Perfons,    with  other  Views, 

to  cno-age  in  fuch  apparently  improvident  Enterprifes,  and  to  pay,  on  many 
Occafions,  fuch  very  high  Premiums,  as  they  do ;  and  which  are  merely  the 
Snares  by  which  they  entrap  their  unwary  Game :  yet,  their  Defigns  are 
fometimes  fruftrated  by  an  unexpefted  Recapture,  or  fome  unwijlied  for 
Event ;  or,  through  the  illicit^  or  defedive  Operation  of  their  Scheme,  and 
confequently  of  their  Policy. 

It  is  a  Maxim  in  the  Law  that — Fraus  nan  prcsfumenda  : — '"'  Fraud  fliall 
not  be  prefumed,   nnXth proved :'' — and  this  is  adhered  to,  mofl  flriflly,   by- 
cur  Courts,  in  Favour  of  the  Affured,   in  all  Infurance  Caufes : — where,  let 
the  Prefumption  of  Fraud  be  ever  fo  violent,  and  well  founded ;  and,  although 
every  Man's  Mind  be  fatisfied  of  it ;   yet,  unlefs  the  Infurers  can  fully  prove, 
and  make  it  out  to  Dcmunjlration,   they  are  fure  to  be  cafl :    whereas,  on  the 
Contrary,   the  crafty   Infured, — (taking  Advantage  of  the  unequal  Situation 
of  the  Infurer,    in  this  Refpecl ;   the  Onus  probandi  always  lying  upon  him  ; 
althougli  the  Infured,   or  his  Agents,  have  in  their  own  Poffefllon,  Power, 
or  Cognizance,    all  the    Fatls,    Circumftances,    and  Documents,    of  a  Kind 
often  dilhcult  to  be  imagined,    or  queflioned  about,    by  Parties  not  in  the 
Secret  ;    and  therefore  effeftual  Means  cannot  eafily  be  ufed  for  unravelling 
them — )  is  generally  able  to  outwit,  by  interejled  Witnelfes,   a  partial  Y.xh\- 
h\\\o\\  o[  Papers,  and  vl  Pcrverfion  ol  FaEls,  an  unprepared,    and  uninformed 
Infurer;    who,    neverthelefs,    may  think  himfclf  very  fortunate  if,    whilft 

aftually 


PRELIMINARY     DISCOURSE.  xxxiH 

aaually  choufed  out  of  his  Property,    together  with  enormous  Cofts,   under 
Colour  of  Law,  his  good  Name  efcapes  from  the  malignant  Breath  o^  De- 
famation unblafted,    for  attempting,    even  on  the  moft  rational  Grounds, 
to  proteft  his  Right. 

In  mod  of  the  Cafes  of  Fraud,  or  Concealment,  there  is  hardly  a  Poffibi- 
lity  of  obtaining  a  Difcovery  thereof,  even  by  the  circuitous  Means  of  a  Bill 
in  Equity ;  for  the  culpable  Parties,  with  the  Affiftance  of  their  Lawyers, 
will  in  general  frame  their  Anfwers  fo  evajively  that,  were  they  produced 
as  Evidence  at  Law,  they  would  need  no  other  in  their  Favour ;  not  to 
mention  the  great  Expence  of  fuch  Bills  and  Anfwers,  extending  through 
the  Ingenuity  of  Lawyers  to  200,  and  even  to  400  Pages,  or  more,  each, 
in  fome  Inftances,  merely  to  get  at  bl  Jingle  material  Fa^  ;  or  to  afcertain  a 
fingle  Quejlion;  which  might  be  refolved  in  half  a  Dozen  Words ;  or,  by 
producing  fome  one  particular  Letter,  or  Paper  only  ;  and  which,  after  all, 
remains  unexplained,   and  as  much  in  the  Dark  as  before. 

iNfliort,  the  ww>yZ  Treatment,  which /?2/iir^rj  receive,  in  various  Refpefts, 
calls  aloud  for  Redrefs. — It  is  certain  that  not  a  Day,  not  an  Hour  pafTeth, 
but  there  are  to  be  heard  Exclamations,  on  the  Part  of  Infurers  at  large,  of 
the  repeated  Wrongs  done  to  them  :  and,  it  is  as  certain  that  thofe  continual 
Complaints  are  but  too  well  founded :  nay,  thofe  Wrongs  are  now  become 
fo  glaring,  fo  evident,  and  fo  numerous ;  yet  are  in  fo  many  Inftances  either 
unobferved,  through  that  habitual  Indolence,  Inexperience,  or  Incapacity, 
as  before  remarked,  of  fome  Underwriters ; — or,  too  eafily  and  frequently 
acquiefced  with,  through  the  Pufillanimity  of  others ;  that  all  poffible  En- 
couragement is,  thereby,  given  to  the  open  and  increafing  Praftice  of  Impo- 
fition  ;  and,  often,  to  the  very  Promotion  of  the  ranked  Fraud  and  Perjury. 

But,  wherefore  do  Gentlemen  exclaim  againft  Abufes,  which  fb  iniquitl- 
oufly,  and  may,  in  the  Y.x\d,  fatally  affeft  their  Interefts,  and  the  future  Welfare 
of  their  Families  ; — without  duly  reflefting  upon  the  very  great  Danger  of 
their  Situation,  or  maintaining  the  real  Confequence  of  their  Charafter  ;  and 
without  ufmg  any  Means,  either  to  correft,  remedy,  or  fligmatize  fuch  Enor- 
mities,   when  they  occur;    or  taking   any    Steps   whatever  to  prevent  the 

Perpetration    of  them   in   future  ? Is  it   not   prepoflerous,     to  the   laft 

Degree,  that  Under^vriters  fliould,  as  many  of  them  certainly  do,  in  the 
feveral  Refpecis  herein  alluded  to,  ?LB.u'A\\y  adminijier  to  their  own  Dejlruc- 
tion?  Is  it  fitting  that  fuch  abfiird,  andi  diJJioneJl  Praftices,    and  the  Alterca- 

I  tions. 


xxxiv  PRELIMINARY     DISCOURSE. 

tions,  Difputes,  and  Litigations,  which  daily  and  naturally  arife  from 
them,  fliould  reign  amongft  Men  of  fo  refpeftable,  and  fo  important  a 
Station  in  the  Community,  as  Merchants  and  Infurers ;— upon  whofe  Ability, 
Probity,  and  Spirit,  depends  not  only  their  own  mutual  Advantage ;  but 
alfo,  in  a  great  Degree,  the  very  Profperity,  Credit,  and  Permanency  of 
the  State  ? 

If  the  feveral  Obfervations  herein  contained  are  juft,  and  founded  on- 
Truth,  as  undeniably  they  are,  it  is  high  Time  that  fome  adequate  Means. 
were  devifed,  and  adhered  to,  that  might  counteract  the  abominable  Dt/^ 

orcifrj  complained  of : for,  otherwife,  they  will  not  only  flill  proceed,  but 

even  multiply;  and  to  a  Degree  that  muft  abfolutely  deftroy  all  private  Se« 
curity  in  this  Bufmefs,  by  rooting  up  all  good  Faith,  and  mutual  Confidence. 

To  fay  that  thefe  Things  do  not  admit  of  Remedy,  or  Prevention,  would 
be,  indeed,  a  ftrange  Infatuation  f — Of  moft  Difeafes,  it  is  but  to  penetrate, 
clearly,  the  Cause,  and  the  Cure  is  often  at  Hand  : — Sublata  Caufa  tollitur 
EffeElus. — Here,  the  Caufe  lies  primarily,  and  principally,  with  the  Gene- 
rality of  Infurers  themfelves ;  in  that  defeBive  Knowledge  of  their  Bufinefs, 
that  Inattention,  Credulity,  and  Passiveness,  which  have  been  fo 
earneftly  dwelt  upon  throughout  this  Difcourfe. — I  fay,  the  Generality  of 
Infurers ;  becaufe,  there  are,  unqueftionably,  amongft  them,  feveral  Gen- 
tlemen, as  already  mentioned,  of  great  Knowledge,  Experience,  and 
Prudence  ;  who,  accordingly,  exercife  a  conftant  and  judicious  Regard  to 
the  Circumjlances,  and  the  Propriety  or  Impropnety^  of  all  the  Tranfaftions 
which  pafs  under  their  Cognizance. 

And  fmce,  with  Refpeft  to  the  infinite  Variety  of  Occurrences  in  Affairs 
relative  to  Infurance,  it  would  be  impofhble  for  the  wifeft  Legijlature,  aftifted 
by  the  moft  intelligent  and  judicious  Informations,  to  frame  Laws ; — or, 
for  the  ableft  Magijlrates  to  execute  them,  in  a  Manner  adequate  to  either 
the  Prevention,  Cure,  or  Puniftiment,  of  fuch  Evils  and  Enormities  as  have 
been  intimated ;  fome  other  more  eligible  and  effeaual  Means,  unattended 
with  that  Difficulty,  Vexation,  and  Expence,  which  Individuals,  and  even  any 
Set  of  Underwriters  of  a  fingle  Policy,  now  experience,  ftiould  be  con- 
trived, and  put  in  Practice,  for  the  general  Good,  amongft  Merchants  and 
Infurers  themfelves  ;—hy  forming  a  fuitable  Plan,  and  Methods  o^  Deteaion, 
and  Stigma. — This  would  do  more,  towards  Reformation  and  Redrefs,  than 

any 


PRELIMINARY     DISCOURSE,  xxxv 

any  pofitive  Laws  can ;  which  it  is  commonly  very  eafy,  as  hath  been  fhewn, 
in  Infurance  Matters,    of  all  others  whatever,  for  the  wicked  to  evade. 

The  Inftitution  of  the  Office  forthe  Survey  and  Regiftering  of  Shipping, 
in  all  the  principal  Porii  of  Great-Britain  and  Ireland,  eftablilhed  and 
continued  for  feveral  Years  paft,  by  a  general  Subfcription  of  Infurers,  &c. 
including  the  two  Corporations,  of  the  London  AJfurance,  and  the  Royal- 
Exchange  AJfurance,  has  been,  and  ftill  is  of  confiderable  Utility,  fo  far  as 
regards  the  profeflTed  and  limited  Defign  of  it ;  in  preventing,  or  difcovering 
Deceptions  and  Impofitions,  formerly  much  praftifed  with  Refpeft  to  the 
Built,  Age,  Quality,  Fitting  out.  Repairs,  &c.  of  Ships. — But,  as  thefe 
Circumftances,  however  needful,  at  all  Times,  to  be  well  informed  of,  are, 
in  Times  of  Wa  r,  and  efpecially  the  prefent  War,  of  lefs  Moment  than  vari- 
ous other  Species  of  Fraud,  affecling  Infurers  ;  this  Inftitution  might,  un- 
doubtedly, be  greatly  improved  and  extended  ;  or,  a  new  and  fomewhat 
fimilar  Association,  or  even  2  or  3  diftinft  Affociations,  entered  into,  for 
effe6ling  the  like  defirable  Ends,  as  to  what  regards  Matters  of  Infurance 
in  general. 

A  small  Addition  to  the  prefent  annual  Subfcription,  would  be  fuflficient 
to  compenfate  for  the  additional  Expence,  Trouble,  and  Aftiftance,  requifite 
to  execute  the  Purpofes  fuggefted  ; — which  might  be  delineated,  at  firft,  m. 
a  general  Manner. 

A  DISTINCT  Committee  might  be  elefted  annually,  or  a  ftandingone; 

To  receive,  at  Hated  Times,  clear  and  fhort  Informations,  in  Writing,  of 
all  plain  and  evident  Frauds,  Deceptions,  Impoftions,  Collufons,  Conceal- 
ments, Baratries,  Deviations,  Illegalities,  Running  from  Convoys,  and  all 
other  Malpractices,  in  whatfoever  Manner,  and  by  whomfoever  committed,, 
abetted,  or  contrived,  to  the  Prejudice  of  Infurers : 


To  give  Direftions  to  the  Society's  Surveyors,    in  the  refpeftive  Ports ; 

and  to  correfpond  with  other  Perfons,  in  other  Places,  for  obtaining  fucli 
Informations  and  Evidence; — all  Papers  to  be  always  open  in  the  Office^ 
regularly  and  conveniently  arranged,  for  the  Recourfe,  and  Infpedioii: 
of  every  Subfcriber: 

To  advertfe,  monthly,  or  otherwife.  Encouragements,  and  Rewards,  to 

all  Mariners,  and  any  other  Perfons,  where  and  whatfoever  (except  Members 

of 


xxxvi  PRELIMINARY    DISCOURSE. 

of  the  Society)  who  might  ^('^a"/,  difcover,  or  produce  authentick  Proo/,  or 
Information  to  the  Committee,  of  any  Crimes,  or  Mdverfalions,  affeaing 
Infurers: but,  even  without  advertifing,  fuch  Difcoveries  would,  fre- 
quently, be  made,  and  Informations  voluntarily  given,  were  fuch  an  AJfociation 
and  Committee  eltablilhed,  profejjedly  to  receive  them  : 

To  confider,    and  report  the  fame,    with  their  Opinion,    to  the  Society, 


at  quarterly,  or  monthly  Meetings ;  who  might,  thereupon,  come  to  fuch 
general  Refolutions  of  Reprobation,  Difcountenance,  or  Admonijlimcnt  (fome 
of  which  it  might  be  proper  to  publiJJi) — Subfcriptions  for  profecuting.  or 
defending  Suits,  in  particular  and  grofs  Cafes  ; — and  fuch  other  well  adapted 
Regulations  as  might  be  judged  to  be  for  the  common  Benefit,  at  the 
common  Charge : 

To  make  a  lliort  Note,    or  Abjlracl,   in  general  Terms,    of  each  of  the 


moft  remarkable  and  clear  Cafes,  or  Inftances,  to  be  entered,  as  well  as 
the  Refolutions,  in  a  fair  Regijler  Book,  by  the  Secretary  ;*  to  which  Subfcri- 
bers  might  refort  at  Pleafure,  for  Information,  &c.  and  which,  perhaps,  it 
might  be  proper  to  print,  annually,  or  oftner,  for  their  Ufe,  and  as  a  public 
Caution. 

These  Suggejlions,  properly  improved,  and  put  in  Execution,  would  in- 
fallibly be  attended  with  very  beneficial  Effefts ;  and  operate,  in  a  great  De- 
gree, as  a  Preventive,   if  not  a  Cure  of  Malpraftices ;  and  even  as  a  Stimulus 

to  a  fair  and  honejl  Condufl. And,  as  the  true  Intereft  of  Merchants  and 

Infurers  is,  in  it's  Nature,  reciprocal,  no  Man  of  Honour  amongft  them 
could  be  indifpofed  to  unite  in  Means  fo  likely  to  promote  it ;  and  to  obviate, 
or  dellroy  the  very  Temptations  to  thofe  foul  and  infidious  Circumventions, 

which  neceflarily  lead   to    Litigation. But,    if  Gentlemen   will    remain 

inaElive,  and  indifferent  about  fuch  Matters ;  they  may  be  awakened,  too 

late,  by  Confequences  irremediable. In  the  mean  Time,  the  Remark  is 

not  more  trite  than  juft,  that  Cujiom  familiarizes  the  worft  of  Evils  ;— and, 
the  more  obvious  the  Truth,  the  lefs  Mankind  are  apt  to  regard  it. 

It  will  not  be  expefted  that,  in  this  Difcourfe,  which  is  only  introdu&ory,  I 
fhould  anticipate  any  Part  of  what  is  intended  to  follow  it ;  or  flate  Inftances, 
in  Point,  of  the  feveral  Allegations  I  have  herein  made  : — nor  can  there  be 

*  See  the  Specimens  in  the  following  Pages. 

but 


PRELIMINARY    DISCOURSE.  xxxvu 

but  few,  if  any  of  my  Readers,  in  the  leaft  concerned  in  the  PraElice  of  Inr- 

furance,  who  ftand  in  Need  of  Proofs  thereof. In  Reality,  thofe  Inflances 

are,  in  each  Kind,  fo  numerous,  of  fuch  daily  Growth  and  Increafe,  and  of 
fo  continual  Occurrence ;  that  a  few  Examples,  befides  the  Difficulty  of 
felefting  them  from  fuch  a  Multitude,  could  anfwer  but  little  general  Purpofe ; 

and  to  defcribe  them,  at  large,  would  be  utterly  impra6licable. However, 

it  may  not  be  amifs,  juft  to  prefent  the  following  recent  Specimens,  merely 
in  Corroboration  of  what  has  been  advanced ; — and,  in  Delicacy,  with  Refpefl 
to  the  Parties  who  were  concerned  in  them,  I  forbear  to  infert,  at  length 
the  Names  of  the  Ships  and  Majlers : — viz, 

1.    £^500  were  infured,    on  Goods,    an  open  Policy,    in  the  P y. 

Captain  F d,  hom  London  X.O  Senegal ;  and,  on  the  fame  Policy,  £^1 50 

more,  on  the  Mafter's  Wages,  Books,  Cabin  Furniture,  &c.  the  latter  Sum 
without  further  Proof  of  Intereft  than  the  Policy. — The  VefTel,  with  upwards 
of  100  others,  after  lying  about  a  Month  Wind-bound  in  the  Downs,  put  to 
Sea  ; — was  the  only  one  amongft  them  which  returned,  through  bad  Weather, 
as  the  Majler  alleged ;  and  was,  with  her  Cargo,  totally  loji,    not  far  from 

the  Downs. The  Broker  recovered  fpeedily  the  aforefaid  £i^O; — and 

alfo/'400,  fromy^M?-  of  the  Underwriters,  of  the  £"500,  without  the  leafl;  Proof 
of  Intereft ;  or  any   Documents  whatever  being  produced;  but  barely  on  an 
AfTurance,  and  a  plaintive  Tale,  from  the  Broker,  that  the  poor  Mafler  (for 
whofe  Account  it  was,  now,  faid  this  Infurance  alfo  was  made)  had  loft  in 
Value  £^750  ;  which  was  ftated  in  3  or  4  Lines,  in  the   Lump ; — befides  the 

faid  £^150. Three   of  the   Underwriters   were  confiderable,    and  often 

leading  ones : — The  ffth,    happening  not  to  be  fo  credulous,    required  an 

Account  of  the  Goods  aftually  //lipped  by  the  Mafter; but  after  two  or 

three  Meetings,  within  as  many  Months,  not  the  fmalleft  Satisfaction  beinj^ 
given,  but  continual  Evafion  on  the  Part  of  the  Majl.er,  and  even  Abufe  by  the 
Broker  ;  who  Hill  pafTes  for  a  very  honcjl  Man  ;  the  former  confeffed  that  he 
had  very  little  more  than  £^100  Value  on  Board;  of" which,  however  no 
Proof  at  all  was  given ; — although  he  had,  at  firft,  offered  to  make  Affidavit  that 

he  had  lofl  full  £^750  in  Goods. He,  therefore,  expreffed  himfelf  intirely 

content  to  receive  £'26,  inftead  of  /^loo; — and,  through  Remorfc  or  Fear, 
returned  to  the  other  four  Underwriters  £'74  per  Cent,  each  ;    near  /'qoo,; 

after  having  been  four  Months  fraudulently  in  Polfeffion  of  the  fame. The 

£^150,  however,  of  which  not  £^30  Value  was  loft,  he  kept. The  Mafer 

K  and 


xxxviii  PRELIMINARY     DISCOURSE. 

and  the  Broker*  were  alfo,  in"  fome  Proportion,  interejled  in  the  Ship  and 
Car0:o  generally ;  on  which,  all  the  Underwriters,  with  as  great  Facility, 
and  as  little  Enquiry,  as  the  aforementioned  four,  paid  a  Total  Loss  of 
between  three  and  four  Thoiifand  Pounds. \ 

2.     Insurance  was  made,  the  End  of  July,  and  firft  Week  in  Auguji, 

on  Goods,  in  the  U ,  Capt.    B ,    from  the   River  MiJfiJJippi  to 

London  :  the  Broker  received  no  other  Information,  or  Inflru6lions,  from  the 
Merchant,  who  gave  him  the  Order,  than  that,  by  the  laft  Letters  received,  the 
Ship  was  beginning  to  take  in  her  Cargo,  and  i\\a.\.J}ie  was  in  very  good  Time, 

A  little  While  afterward.  Advice  arrived  in  London  that  flie  had  been  taken 

bv  a  Privateer ;  a  total  Lofs  was  accordingly  fettled,  very  readily,  by  all  the 
Underwriters,  except  two  ;  who,  on  perufing  attentively  the  Papers,  obferving 
the  Dates  of  her  Departure,  Capture,  and  other  Circumjiances ;  and  making 
Enquiries  refpefting  the  Departure  and  Arrival  of  other  Ships,  about  the 
fame  Time,  for  the  like  Voyage ;  found  Reafon  to  fufpeft  that  there  was 
Deception,  and  Concealment,  with  Regard  to  the  Infurance  on  the 
U ,  Accordingly,  it  came  out,  on  further  Examination,  that  the  Mer- 
chant had,  fo  early  as  the  \&ihjune,  received  a  Letter,  dated  Bourdeaux  5th 
lune,  from  a  Relation  of  his,  who  was  juft  arrived  therefrom  the  MifpJJippi,  in 
a  French  Ship  ;  and  who  was  Proprietor  of  an  Half  of  the  Cargo  on  Board 

t}^e  U ;  ordering  Infurance  of  the  fame  (which  w-as  accordingly  effeded) 

and  alfo  advifing,  that  he  expefted  (he  failed  10  or  14  Days  after  him : — it  alfo 
appeared  that  his  faid  Relation  arrived  in  London,  and  delivered  to  him  per- 
fonally,    on   the   6th    July,    a   Letter  which  he  had  brought  from    Capt. 

B ,  dated  25th  March,  ordering  the  firft  mentioned  Infurance  (being 

on  the  other  Half  o^ the  Cargo,  and  for  the  Captains  Account)  and  advifing 
that  "  the  Cargo  would  be  on  Board  in  14  Days,  and  that  hefiouldfail  in  about 

fix  Days  after," Now,  it  was  acknowledged  that  the  Voyage  from  the 

MinTifTippi  to  London,  required  no  longer  Time,  than  from  the  fame  Place  to 
Bourdeaux;  and,  confequently,  the  Ship  ought  to  have  been  deemed  as 
m  fling,  a  confidcrable  Time  before  the  firft  Week  in  Auguft  (being  near  4 
Month  from  the  intended  Time  of  her  Departure)  and  might  have  been  ex- 
pefted  to  arrive  at  London,  fooner,  or  at  leaft  as  foon  as  the  aforefaid  Letter, 
brought  by  Way  of  Bourdeaux,    i.  e.  6th  July. — When  the  Captain  himfelf 

*  Such  are  the  lioneft  Gentry,  who  go  dhoM Jcantializi-i<^  Underu-rlteis,  who  will  not  be  p!und,rfd, 
with  the  Cry  of  Caviller,  litigious,  &c.  and  thofe,  who  have  not  Opportunity  to  be  rightly  informed 
of  the  Facts,  are  too  apt  to  believe  theni. 

+  From  Motives  of  the  abovementioned  Nature,  hme  foreign  Ordinances  forbid  the  infuring  of  Ships, 
Goods,  &c.  if  the  Owners,  or  Proprietors,  go  to  Sea  with  them,  as  Majlers,  Supercargoes,  &c. 

came 


PRE  LI  MI  NARY     DISCOURSE.  xxxix 

came  to  London,  he  brought  Aftions  againft  the  faid  two  Underwriters, 
who  had  refufed  to  pay,  and  they  paid  the  Premium  into  Court ;  but  he 
declined  profecuting  them  ;  and  afterwards  fued  the  Merchant,  his  Agent,  who 
had  neglefted,  for  Reafons  beft  known  to  himfelf,  to  make  the  Infurance  in 

proper  Time. All   the   other  inattentive  Underwriters,    however,    who 

had  paid,  remained  with  the  unjvjl  Lofs  of  their  Money. 

3,     Insurance   of  about  £3000  was  made,  on  Goods,  m  a  French  Ship, 

the  G T ,  from  Martinico  to  Bourdeaux  ;  as  on  French  Weft-India 

Goods. — On  her  Voyage,  flie  was  feized,  and  brought  in,  by  a  Privateer, 
having  a  Commiflion  againft  Amn-ican  Ships  and  Goods,  and  before  Letters 
of  Marque  were  granted  againft  the  French. — "When  it  was  required  to  fettle 
the  Lofs  on  the  abovementioned  Goods,  they  appeared,  by  the  Papers,  to 
be  American  Tobacco,  belonging  to  a  Briiijh  Subjeft,  then  in  London  ;  but 
■who  had  been  to  Martinico,  for  the  Purpofe  of  obtaining  the  fame  from 
America,  and  ftiipping  it  for  France :  for  which  Tobacco,  when  the  whole 
Matter  of  the  Ship  and  Cargo  was  difcufled  in  the  Admiralty  Court  for  Con" 
demnation,  the  Mafter  fwore  "  he  had  figned  falfe  and  colourable  Bills  of 
Lading,  wherein  were  exprelTed  Sugar  and  Coffee,  inftead  of  Tobacco  ;  that 
the  Laders  of  them  at  Martinico  informed  him,  this  was  done  to  prevent  the 
fame  htva^feized  by  the  Englijh,  it  being  the  Produce  of  North  America  ; 
and  that  he  remonjlrated  with  them  on  the  Danger  of  lofing  the  Ship  and 
Cargo,  by  fuch  Seizure,  on  Account  of  fuch  American  Goods," — Notwith- 
ftanding  no  Information  had  been  given  to  the  Underwriters,  by  which  they 
might  imagine  that  the  Goods  were  American,  liable  to  the  Rifk  of  Seizure 
and  it's  Confequences ;  which  the  Laders,  and  confequently  the  Affured,  as 
well  as  the  French  Captain,  had,  thanfelves,  ^o  ]\x^\y  feared ; — and,  notwith- 
ftanding  no  extra  Premium  had  been  given,  in  Confideration  of  fuch  extra 
Rifk,  but  barely  the  then  current  Premium  on  Goods  o^  French  Growth  and 
Property  ; — feveral  of  the  Infurers,  following  a  Leader,  xcithout  infpedino-  the 
Papers,  paid  the  Lofs ;  /^200  and  £^300  each ;  not  perceiving,  or  not  con- 

fidering  that  there  was  manifeft  Collusion,  and  undue  Concealment  ;* 

and  alfo  Illegality  (as  furely  it  ought  to  be  deemed)  on  the  Part  of  the 
Britifi  Affured,  by  an  Infringement,  or  tantamount  Evafion,  both  of  the 
Prohibitory,  and  Navigation  Acls  ;  wOiich  was  the  Caufe  of  the  Seizure,  &c. 
as  declared  on  Oath  by  the  Captor, 

*  Of  Circumftances  "  varying  materially  the  OhjeB  of  the  Pohcy,  and  changing  the  Rifk  underftcod 
to  be  run." — See  Pag-  <;  28  and  '29. — Had  the  Infurers  been  informed  fas  they  ought  to  have  been]  that 
the  Goods  were  y4/«fnVa/?,  efpecially  ToBACCu,  it  is  not  fuppofahle  that  they  would,  at  that  Time 
Lave  uadcrwruien  them  j — at  lea!l,  not  without  a  muck  larger  Fremiumy  as  well  as  "Jree  of  Avera-re" 

4.     Sevzral 


j,l  PRELIMINARY     LIS  COURSE. 

A.  Several  Veflelsj  taking  prohibited,  or  unliceTifed  Goods,  for  our 
garrifoned  Ports  in  North  America :  efpecially  when  fuch  Goods,  or  Part 
thereof,  were  (hipped  for  the  Majlcrs  Account,  and  infured  as  legal  and 
Ucenfcd  Goods ;  have  not  unfrequently  gone  intentionally  out  of  their  Courfe, 
and  in  the  Way  of  being  taken ;  knowing  that,  if  they  arrived,  the  Goods 
would  be  liable  to  Seizure  .-—nay,  it  has  been  proved  that  fome  of  fuch  VefTels, 
although  without  Guns,  have  actually,  on  the  moft  fliameful  Pretences,  made 
all  the  Sail  they  could,  during  4  or  5  Hours,  to  get  up  zoith  Privateers  of 
confiderable  Force,  and  have  accordingly  been  taken  ;  and  Infurers  have 
thereupon,  with  little  Difficulty,  or  Examination,  paid  total  Lofles ;  and 
left  the  Perpetrators  of  fuch  Iniquities  intirely  free  to  repeat  them. 

5.  An  Order,  by  Letter  from  L,  was  fent  to  London,  for  Infurance  on  the 
F ,  Capt.  B ,  from  Jamaica  to  faid  L : — the  Letter  only  men- 
tioned that  "  fome  Ships  (Part  of  the  Fleet,  with  Convoy)  were  jufl  arrived 

at  L,  and  that  the  F xoas  in  the  Fleet." The  Letter  being  fhewn, 

and  the  Policy  offered  to  a  leading  Underwriter,  at  only  5  Guineas  per  Cent, 
(although  the  current  Premium  on  the  Ships,  warranted  with  that  Convoy, 
had  been  10  Guineas)  he  readily  took  the  Idea  which  was  intended,  by  the 
Words  of  the  Letter,  to  be  fuggefted ;  viz.  that  the  Ship  was  near  homCf 
and  might  be  hourly  expefted  to  arrive  ; — and,  accordingly,  he  underwrote 
£'300;  feveral  other  Gentlemen,  as  readily  followed  him,  fome  fubfcribing 
/"300,  and  others  /'200  each ; — but,  a  few,  more  wary,  reflefting  that 
nearly  all  the  Ships  of  that  Fleet  were  then  aftually  arrived,  at  the  different 
Ports  of  their  Deftination ;    and  that  the  Letter  made  no  mention  where 

tlie  F had  been  left,    or  in  what  Part  of  the  Voyage  flie  was  lajl 

fcen ;  which  the  AlTureds  (who  'tis  prefumable  had  been  in  Hopes  of 
faving  the  Infurance)  might  naturally  have  enquired,  and  been  informed  of, 
by  the  Ships  then  arrived ;  fufpefted  fhe  muft  have  been  left  in  an  early  Part 
of  the  Voyage,  rather  than  near  home ;  and,  probably,  fcparated  from  the 
Fleet,  and  expofed ;  and,  therefore,  refufed  to  underwrite  the  Policy,  afking 

20  to  25  Guineas  per  Cent. The  next  Pofl,  another  Letter  came  from 

the  Owner,  with  thefe  inticing,  but  dark  Words;  "  The  B (a  Veffel 

arrived  at  L.)  left  the  Fleet  a  Week  ago :  I  am  told  ih^^.fome  of  her  People 

faw  the  F in  the  Fleet,    a  fcio  Days  before  they  left  it." — The  faid 

leading  Underwriter,  therefore,  aftually  continuing  under  the  fame  delufive 

Idea,  of  the  F being  left  near  Home,  underwrote  £^200  more,  at  15 

Guineas  per  Cent,  on  the  fame  Policy ;  and  was  followed  by  feveral  other 

Gentlemen. The  Event  was,  that  theF ,  had  been  wrecked  in  the 

Gulf  of  Florida ;  even  in  Sight  of  fome  Part  of  the  Fleet  (as  appeared  by 

the 


PRELIMINARY    DISCOURSE.  xli 

the  Captain's  Prctefl) — and  there  was  about  £^94  per  Cent,  on  upwards  of 
£"4000,  fettled  as  a  Lq/s,  on  the  faid  Policy. 

6.  A  Ship,  the  R ,  Capt.  G '-,  infured  from  LoJidon  to  Lime- 
rick and  PenfdCoLa,  was  taken,  after  her  Departure  from  Limerick. — A 
Total  Loss  was  readily  fettled  by  all  the  Underwriters,  following  each 
other,  without  Examination,  except  3  or  4  ;  who,  upon  looking  Into  Papers, 
were  led  to  make  Enquiry,  and  found  that,  previoufly  to  going  to  Limerick, 
fhe   had  been  aftually  3  Weeks  at  Cowes,  taking  in  Goods  ; — which  was  a 

Deviation  that  forfeited  the  Policy. The  Affured  prudently  refted  fatif- 

fied  with  what  he  had  received  from  all  the  other  indolent  Underwriters;  and 
never  molefled  thofe  3  or  4,  who  refufed  to  pay. — The  AJfured,  and  the 
Broker,  however,  had,  at  firft,  ignorantly  and  warmly  infifted  that,  by  the 
printed  Terms  o^xht  Policy,  the  Ship  might  "  touch  and  flay  at  any  Ports 
and  Places"  where  the  Mailer  fliould  think  fit» 

7.  The   Ship,   C N ,    Capt.    W ,  and  her  Freight'r 

valued  together  at  £goo,  were  infured,  from  Dover  to  Cadiz,  tiience  to  Petty 

Harbour,  in  Labrador e,  and  back  to  GzaVz,  or  a  Market,  and  London. The 

Ship-proceeded  to  Cadiz,  and  from  thence  arrived  near  Petty  Harbour;  but 
the  Agent  o^  the  Freighters  being  (as  the  Mailer  fet  forth)  removed  from  Petty 
Harbour  to  another  Place,  called  Merchant's  Ship's  H.vrbour,  12  Miles  dijlant 
from  Petty  Harbour  ;  to  which  only  the  Ship,  both  by  the  Policy  and  Charter 
Party,  was  bound  ;  the  Mailer,  after  waiting  fome  Days  on  the  Coafl,  and 
fending  on  Shore  tofeek  for  the  Agent,  fuffered  the  latter  to  pilot  the  Ship 
to  Merchant's  Ship's  Harbour  :  where,  after  the  Crew  had  been  employed  5 
or  6  Weeks  mjijliing,  for  the  Benefit  of  the  Freighters,  the  Ship  was  taken  by- 
armed  Boats,  fent  from  an  American  Privateer,  then  lying  off  the  Harbour. 

' — It  appeared  alfo,  finally,  on  infpefting  the  Charter  Party,  that  the  Mailer 
and  Crew  were  obligated  tojijh,  during  20  Weeks,  in  Petty  Harbour,  through 
the  Winter:    of  which  the  Infurers  were  not  informed;    but  underflood  a 
Cargo  was  to  be  ready  for  her,  on  Arrival  there.     The  Ship  was  retaken, 
carried  to  Hallifax,  and  there  fold  to  pay  the  Recaptors,  &c. —  a  Loss  of 
above £'80   per  C^t  was  demanded  from  the  Underwriters,    and  fettled  by 
feveral  of  them:  the  red  refufed,  alleging  that  there  was  a  manifeil  Devi- 
ation ; — that  the   Captain  fhould  have  proteRed  againft  going  to  any  other 
Place,  than  that  to  which  his  Ship   was  bound,  and   infured; — that,  more- 
over, they  did  not  undertake  the  Rifque  of  the  Ship's  Stay,  during  5  Months 
fjhing: — and  that,  even  if  the  Lofs  had  been  fach  as  they  were  liable  to,  there 

L  was. 


xlii  PRELIMINARY     DISCOURSE, 

was  by  no  Means  a  total  Lofs  of  Freisht  (as  claimed)  Regard  being  had  to  the 
Terms  of  the  Charter  Party. 

8.  A  Cargo,  of  different  Mercliandifes,  of  almoR/'ioooo  Value,    was 

fliipped  in  the  T ,  Capt.  N ,  at  St.  Peter/burg,  for  Leghorn:— 

half  the  Intereft  was  infured  for  a  Houfe  in  London: — an  Average  was 
flated,  and  readily  fettled,  at  near/'i2  per  T^ni,  by  all  the  Underwriters, 
about 30 in  Number,  follozoing  implicitly  a  Leader,  except  two: — Thefe  foon 
perceived,  by  a  little  Obfervation  of  the  Papers,  that  there  muft  be  confider- 
able  Error  ;  and  upon  further  Examination,  and  reforming  the  Adjuftment, 
proved  to  the  Afl'ureds,  beyond  Contradiction,  that  they  were  intitled  to 
no  more  than  £g  11s.  per  Cent ;  which,  after  much  Relu6lance,  they  acknow- 
ledged themfclves  fully  convinced  of : — but  they  never  returned  to  the  other 
Underwriters  the  £6  gs.  per  Cent,  which  they  had  received  too  much; 
amounting  to  above  /"soo. 

9.  Insurance    was   made,   on   Ship,  the   B P ce,    Capt. 

W ce,    from  Senegal  to  London,    and  on  the  Cargo  ;    both  in  the  fame 

Policy,  and  underwritten  by  i\\e  fame  Infurers : — the  Ship,  valued  at/'i200; 
and  the  Value  of  the  Cargo,  confiding  of  different  Articles,  was  about  £^6800 ; 
one  of  which.  Value  about  £"4900,  was  flated,  by  the  Affureds,  as  having 
luffered  Damage  to  the  Amount  of  £'962  : — and  they  claimed  from  the  In- 
furers on  Ship  and  Cargo,  an  Average  Lofs  at  very  near  £^20  per  Cent ; 
having  calculated  it  on  the  £^4900,  only ;  without  any  Regard  to  the  Value  of 
the  Ship  and  the  whole  Cargo,  infured  together  at  /'8000,  as  above- 
mentioned  ;  on  which  Sum,  the  Average  would  have  been  but  about  £\2pex 
Cent. — And,  notwithftanding  fo  very  ^/an'n^  an  Error  in  the  Demand,  if 
it  deferves  no  worfe  Name,  all  the  Underwriters  of  the  greater  Part  of  the 
/'Sooo  (the  whole  not  being  fubfcribed)  following  implicitly  a  Leader's 
Clerk  ;  except  5  or  6,  who  were  more  attentive  ;  actually  Ggned  the  Adjuft- 
ment,  at  nearly  £^20  per  Cent : — fo  that  the  Affureds  received  about  /'8  per 

Cent  more  than  their  due,  by  the  erroneous  Mode  of  Stating  only. There 

were  other  confderahle  Errors  in  the  Calculation,  further  injurious  to  the 
Underwriters  ;  which,  for  the  Sake  of  Brevity,  I  omit  to  notice.* 

10.     A 

*  The  Affartd,  neverthelefs,  brought   Anions   againfl   thofe  5  or  6  Underwriters  abovementioned,. 
and  proceeded  therein,    noiwithflanding  an  immediate  Offer  was  made  by  them  to  leave  the  Affair  to 
Arbitradon;  by  which  Mode  the  Average  v/m,  at  lad,  determined  at/"i2  per  <?««/;  but  not  till  the  Un- 
derwriters were  aifo,  previoiijly,  fubjefted  to  between  £g  and/'io  ^tr  Cent,  Law  Charges,  which  ihey 
were  obliged  to  pay  :— for,  although  there  fhould  be  only  40  Skitlings  per  Cent  due  on  a  Policy,  from  the 

Underwriters, 


PRELIMINARY     DISCOURSE.  xliii 

10.  A  SMALL  Cargo  of  Provi/ions,  on  board  the  G I ,  Capt. 

S ,  was  infured,   from  Dublin  to  Bourdeaux  ;  including  the  Rifque  of 

Captures  and  Seizures,  by  Britifli  Men  of  War  (on  Account  of  the  Embargo, 
then  in  Ireland). — The  Ship  and  Cargo  were  feized,  by  two  VefTels,  havincp 
only  CommiJJions  of  Marque  againft  American  Ships  and  Property,  and 
brought  into  Plymouth :  the  Owners  whereof,  finding  they  had  no  Authority 
for  what  they  had  done,  propofed  to  the  Proprietors  of  the  faid  Cargo,  that 
the  Indemnification  of  Damages,  in  Confcqucnce  of  the  Seizure,  fhould  be 
fettled  by  Arbitration  ;  which  the  faid  Proprietors,    with  the  Approbation  of 

the  Infurers,   agreed  to. The  Arbitrators  awarded  upwards  of  £^270,  as  a 

full  Indemnification  ;  which  was  accordingly  paid  to  the  Proprietors. — ■ 
And  the  Ship  having  Clearances  for  England,  the  Cargo  (confifting  of  Beef, 
Pork,  &c.)  was  relhipped  at  Plymouth,  for  London;  where,  on  Arrival,  there 
was  but  little  Demand  for  Irifli  Provifions  ;  and  befides,  through  the  Delay, 
they  were  much  hurt :  fo  that,  after  their  being  fold  at  publick  Auftion,  a 
Claim  was  made  upon  the  Infurers,  as  for  a  Lnfs,  of  about  £^54  per  Cent  (not- 
withftanding  the  aforefaid  Indemnification,  which  had  been  received  by  the 
Proprietors) — and  was  paid  by  the  greater  Part  of  the  Underwriters :  the 
reft  refufed,  faying,  they  had  Nothing  to  do  with  it,  efpecially  after  the 
Award  of  the  Arbitrators ;  who  certainly  had  taken  into  Confideration  (as 
was  intended)  the  whole  of  the  Damages  ;   which  were  intirely  con/equential 

of  the  Seizure. 'Tis  true,   that  thofe  Underwriters  only,  who  paid  the  ft:,  a 

per  Cent,  had,  inconfidcrately,  figned  a  fubfequent  Agreement,  for  the  Pro- 
vifions to  be  fent  to  London,  and  fold  : the  others  confidered  the  Azoard 

as  conclufive. 

11.  Goods,  to  the  Amount  of/'iooo,  were  infured  in  the  T and 

M ,  Capt.  F ,  from  Ireland  to  Newfoundland: — they  appeared, 

afterwards,  to  be  Beef,  Pork,  Bifcuit,  &c.— the  Biscuit,  Value  about 
£120,  was  (hipped  loofe;  and,  during  the  Voyage,  totally^oz/^^^by  Sea  Water. 
—An  Average  of  about  £12, per  Cent  was,  therefore,    demanded;    on  the 


Underwriters,  zdijlione/}  znAlitigioui  A^mei\\?is\t,  always,  mUsVovrer  to  demand  {^o  ^er  Cent,  or 
any  Sum  he  pleafes ;  and,  even  without  any  Demand,  to  caufe  Ailions  to  be  brought  againft  every  one  of 
tlum  ;  who  are,  unavoidably,  liable  to  pay  the  Co/Is,  to  the  Time  of  their  pleading  to  the  Declaration, 
and  paying  into  Court  fuch  Sum  as  they  acknowledge  to  be  due— This  conftant  Praaice  of  kungall 
the  Underwriters  on  a  Policy,  whereby  they  are  often  made  fubjea  to  pay  £^a,  £60,  and  fotnetimes 
more,  each,  as  Cofls  (although  the  Caufe  be  tried  againfl  one  of  them  only;  and  although  their  Sub- 
rcnptionsbebut/"ioo  each)  is  a  very  great  Gwwaw* ;  for,  it  feldom  happens  that  the  Parties,  in  an 
Injur ance  Caufe,  have  Confidence  enough,  with  Regard  to  the  JufliceQ[\.h&  Decifion  that  may  be  made, 
to  agree,  previoujy,  that  one  Trial  only  fhall  determine  the  Matter, 

Pretence 


xliv  PRELIMINARY    DISCOURSE. 

Pretence  that  Bread,  or  Bifcuit,  is  not  mentioned  in  the  Policy,  as  frse  of 
Average;  and  was  paid  by  all  the  Underwriters,  excepts;  who  objeaed, 
very  juUly,  that  Bifcuit,  as  alfo  Med,  though  not  literally  msntioned  in  the 
Policy,  is  of  the  Nature  of  Corn  or  Flour;  as  much  as  Salmon,  though 
pickled,  Herring,  though  cured.  Char,  though  potted.  Caviar,  &c.  are 
Hill  Fi/Ji:— nay,  that  Bifcuit  was  much  more  fubjea  to  be  fpoiled  than 
either  Corn  or  Flour  :— and  that  Flour,  Salt,  Fruit,  &c.  being  by  the  Policy 
free  from  Average,  fo  would  any  Thing,  which  might  be  a  Compound  of  all 
thofe  Articles. 

12.     Insurance   of  £"300  was  made,  in  London,  on  the  Ship  H , 

(an  open  Policy)  from  B,  to  N :— on  the  Voyage,  (he  was  taken  by  a  Pri^ 

yajggj-. a  Total  Loss  was  demanded,  and  implicitly  paid  by  two  of  the 

Infurers,  £^100  each. — The  other,  on  examining  the  Papers,  and  making 
Enquiries,  found  that,  when  the  Order  was  fent  to  London,  the  Ship  had 
been   14  Days  departed  from  B.  (which  was  two  Days  Pod  from  London) 

. that  fhe  had,  two  Months  before  that  Departure,  been  out,   a  firft;  Time, 

received  Damage,  and  put  back  to  repair  (neither  of  which  Circumftances  the 
Underwriters  of  the  £^300  had  been  informed  of) ; — alfo,   that £^400  had  been 

infured  on  her  at  B,    before  her  Jirjl  Departure  ; and,  that  the  Value  o^ 

the  Veffel,  covered,  was  only  £566. — Therefore,  as  the  Underwriters  of 
the  prior  Infurance  of  £^400,  at  B,  were  liable  to  a  total  Lofs,  had  it  hap- 
pened, during  the  tzvo  Months,  before  the  fubfequent  Infurance  of  £"300  was 
made,  when  the  Veffel  was  under  different  Circumftances ;  the  Underwriters 
of  this  Sum,  at  London,  ought  neither  to  pay  a  total  Lofs,  nor  be  brought  in 
to  eafe  the  fnjl  Underwriters  at  B;  but  only  to  pay  the  remaining  £166, 
making  about  £'55  per  Cent ;  and  return  a  Proportion  of  the  Premium,  on 
£^134  cver-infured,  on  the  fccond  Policy. — It  was  alfo  alleged,  that  the 
London  Underwriters  ought  to  have  been  made  acquainted  with  the  Circuni' 
/?flnai  aforementioned  ;  efpecially  That  of  her  having  been  14  Days  departed, 
when  the  Order  was  fent  from  B  ;  that  they  might  have  judged  for  themfelves 
thereupon, — as  to  the  then  Rifque  of  Privateers,  &c. 

13.  A  Cargo  o(  Sugars  was  infured,  from  London  to  Ireland,  and  Part 
of  them  much  damaged;  their  Invoice  Coll  was  low;  on  their  Arrival,  the 
Market  Price  was  advanced,  fo  as  to  give  a  Pmjit  of  £'30  per  Cent  on  what 

arrived  found. The  Affared,  in  ftating  the  Average,  dedufted  fimply  the 

Sum,  which  both  the  found   and  the  damaged  Sugars,  together,    had  pro- 
duced, from  the  Amount  of  the  Invoice  covered ;  and  claimed  from  the 

Underwriters, 


PRELIMINARY     DISCOURSE.  xlv 

Underwriters,  as  a  Lofs,  only  the  Difference ; — and  fo  gave  them,  ignorantly, 
the  Gain,  of  a  very  profitable  Market,  which  belonged  to  himfdf ;  receiving 
only  an  Average  of  about  £']  per  Cent,  inftead  of  upwards  oi £10  per  Cent, 

14.  On  the  Contrary, — divers  Goods,  in  feveral  of  the  Ships,  from 
Ports  in  Great-Britain  to  New-York,  in  1777,  M'ent  to  a  very  losing 
Market,  and  were  alfo  damaged  more  orlefs  : — feveral  Letters  from  New- 
York  mentioned,  that,  if  the  leaft  Damage  appeared,  whole  Packages  were 
put  by,  and  fold  for  Account  of  the  Underwriters ;  and  thefe,  on  feveral  Poli- 
cies, being  charged  with  the  Lofs,  by  ftating  it  as  the  Difference  between  the 
Invoice  Amount  of  thofe  Goods  covered,  and  the  721?^  Produce  thereof,  were 
egregioufly  impofed  upon,  by  adually  paying  the  Lofs  of  the  Market, 
befides  the  true  Proportion  of  the  real  Damage. 

15.     The  Manner  in  which  Ships  with  Letter  of  Marque  have  beeit 
infured,   and  LoflTes  paid  on  them,  is  very  extraordinary  ;  viz. 
.'.  .1.^.  • 

One  of  fuch  is  infured,    fuppofe  fimply  for  the  Vovage  (as  was  the  Cafe  of 

the  M F '■ ,  Capt,  C )    from  Liverpool  to   Jamaica;    no 

Liberty  being  inferted  in  the  Policy  to  chafe,  cruize,  &c. — At  Sea,  fhe 
perceives  a  Ship,  which  is  fuppofed  to  be  a  French  Eafl  or  Wefl-Indiaman  • 
and  which  fhe  cha/es  for  4  or  5  Hours,  out  of  the  Track  of  her  Voyage,  and 
attacks; — but  finds,  at  laft,  that  it  is  a  French  Frigate  o?  War;  to  which 
the  Letter  of  Marque  flrikes,  and  is  taken. — Underwriters  have,  with  very 
little  Refletlion,  fettled  fuch  Loffes  : — but,  was  there  not,  in  the  above  Cafe 
fuch  a  Deviation  from  the  Voyage,  folely  with  Intention  for  the  Owner's 
Benefit,  ^%  forfeited  the  Infurance  ?— or,  where  fhall  the  Line  be  drawn  at 

which  a  Deviation,  on  fuch  Occafions,  commences  ? If  the  Ship  infured 

could  chafe,  out  of  her  Track,  an  Hour,  or  a  Mile,  purpofely  for  vtaking 
Prize,  might  fhe  not  purfue  it  for  a  Day,  a  Week,  or  a  Month,  even  into  the 
North  Seas  ;  nay,  quit  her  Voyage  repeatedly,  at  the  Rifque  of  the  Infurers? 
—The  Extent  of  the  Authority,  by  the  Letter  of  Marque,  or  any  other 
Authority,  or  Commilhon  which  the  Ship  may  carry,  is  a  Matter  extraneous, 
or  di/lina  from  the  Contract  with  the  Infurers,  as  fpecified'm  the  Policy,  which 
is  limited  to  the  Voyage  ;  and  if  the  Mailer,  wilfully,  and  for  the  Benefit  of 
the  doners,  not  of  Neceffity,  or  for  Defence,  commits  a  Breach  of  fuch 
Contract,  by  going  out  of  it's  Limits,  it  ought  to  be  at  their  Peril,  not  the 
Underwriter's  Rifque.— ' Pis  faid,  they  infure  her,  knowing  fhe  has  a  Letter 
ofMarque:— True,    knowing  her  to  be  a  Ship  of  Force,  they  underwrite 

M  her, 


xlvi  PRELIMINARY     DISCOURSE. 

her,  even  at  a  fmallcr  Premium  ;  becaufe  flie  is  able  to  make  Deftna  ;   but, 
is  it  to  be   inferred  from  thence  that  (lie  may  dX^o  chafe,   attack.    Sec.    ad 

LIBITUM?  Surely  not   at  the  Rifque  of  the  Infurers. This  feems  to  be 

confirmed  by  the  Affureds  requiring  a  Return  of  Part  of  the  Premium,  on 
fuch  Ships  as  have  dtviated,  taken  Prizes,  put  feveral  of  their  Men  aboard 
fuch  Prizes,  and,  quitting  their  Voyage,  have  returned  Home :— which 
Returns  of  Premium,  though  made  by  feveral  Underwriters,  were  however 

no  more  due,  in  fuch  Cafes,  than  in  others  of  Deviation. The  Liberty, 

and  additional  Premium,  exprefsly  given,  in  the  following  Inftances,  is  alfo  a 
further  Corroboration  of  the  abovementioned  Doclrine. 

\6.     Other  Ships,  with  Letter  of  Marque,   are  infured  for  a  certain 
Voyage,  "  with  Liberty  to  chafe,  and  make  fuch  Prize,  as  fhe  may  meet  with 
\x\\\trWay;" — others,  "with   Liberty  to  cruize  ^ — others,  "  \^i\.\\  Liberty  to 
cruize  one  Month,"  or  two  Months,  or  more ; — others  "  with  Liberty  to  touch 
and  flay  at,  and  to  conduft  fuch  Prizes  as  (he  may  make,  to  any  and  all  Places 
where  and  whatfoever,  during  her  Cruize  in  her  Voyage   out;" — and  in 
feveral  other  novel,  vague,  or  indefinite  Modes,  to  which  many  Underwriters 
give  very  infuflicient  Attention,  and  for  which  they  receive  very  inadequate 
Premiums; — neither  do  the  AJfureds  feem  to  perceive  the  Dangers  which 
may  arife   to  themfelves,    in  fome  particular    Events,    from   a  Diverfity   of 
Opinion,  with  Regard  to  afcertaining  the   Time  and  Place  of  chafing  and 
cruizing,    and  the   Operation    and    Confiruftion    of  fuch   Claufes,    unitin<r 
Voyages  and  Cruizes. — Much  Comment  might  be   made   thereupon  ;  but  it 
is  here  only  meant  juil  to   hint  the   great  Probability  of  fuch   Contrarieties 
happening  : — Time  will  fhew  if  this  Conjefture  is  well  founded  ;  for  many 
Ships  with  Letters  of  Marque,    infured  as  above,  will  afiTuredly,  during  the 
prefent  Spirit  of  privateering,  t\\\\cr  take,  or  betaken;  the  Performance  of 
the  Voyage,  being  an  Objeft  o^far  lefs  Regard. 

17.     The  Ship  M r,  Capt.  D (with  Letter  of  Marque)  and 

Goods  on  board  her,  were  infured,  about  the  Middle  of  July,  for  the 
Voyage,  from  Liverpool  to  Jamaica,  at  5  Guineas  per  Cent;  afterward,  an 
additional  Premium  of  10  Guineas  per  Cent  was  given  to  the  fame  Under- 
writers, for  Liberty  to  cruize  one  Month. — The  Ship  was  fo  fuccefsful  as, 
near  the  End  of  Oaober,  to  make  Prize  of  the  C c,  French  Eafi- India- 
man,  eflimated  to  be  worth  upwards  of  /'200000,  which  fine  alfo  conduQed 
fafelyto  the  Downs;    where  they  arrived  about  the  Middle  of  November; 

and  the  Owners  of  the  M- r,  thought  fit  to  lay  afide  the  further  Profe- 

cutioa 


PRELIMINARY     DISCOURSE.  xlvii 

ciuion  of  the  Voyage  to  Jamaica. — But,  notwithftanding  the  Underwriters 
had  run  the  Rifque,  not  only  of  the  Month's  Cruize,  but  aifo  of  the  Voyage  ; 
and  that  the  Deviation  from  the  latter,  by  the  Ship's  Return  home,  was  a 
Matter,   folely,  for  the  Benefit   of  the   Owners,  and  to  fecure  the  Prize; 

and  notwithftanding,  in  Cafe  the  M r  had  been  loft,  or  taken,  during 

afly  Part  of  the  Time  flae  was  at  Sea,  it  is  highly  probable  that  the  Affureds 
would  have  endeavoured  to  fix  the  Lofs  upon  the  Underwriters,  as  hap- 
pening either  within  the  Month's  Cruize,  or  the  Voyage  ; — yet  the  poor, 
generous  Owners,  required,  and  aftually  obtained  from  much  the  greater  Part 
of  the  Underwriters,  a  Return  of  all  the  firft  Premium,  o^£^  per  Cent, 
on  about  £^9000 ;  which  the  Insurers  were,  hov/ever,  indifputably  entitled 
to  keep;  having  abfolutely  run  the  Rifque  of  the  Voyage,  during  all  T^c^ 
Part  o(  4  Months,  as  was  exclufive  of  the  Month's  Cruize,  and  of  the  few- 
Pays  Deviation  in  returning  Home  : — befides  that  This  did  not  give  the 
Owners  even  the  leafl:  Title  to  any  Return  of  Premium  ;  efpecially  in  a  Cafe 
fo  profeffedly,  and  extremely  for  their  Benefit. 

18.     Insurance   was   made,    on  the  25th  May,    on  the  Freight,  of  the 

S ,  Capt  B ,  from  Jamaica  to  London  ;  the  Broker  reprefented 

the  Ship  to  be  in   Port  in  regular  Time,    and  no  Advice  received  to  fuppofe 

the  Contrary  : foon  after.  News  came  of  her  hemg  Jiranded  on  the  Coaft 

of  Florida,  throwing  overboard  great  Part  of  her  Cargo,  and  getting  off; 
other  Accidents  alfo  happened  to  her  ;  and,  finally,  after  having  twice  put 
back  to  unload,  repair,  &c.  flie  arrived  in  the  Thames. — An  Average  of 
about  £^0  per  Cent  was  fettled,  on  Freight,  by  all  the  Underwriters,  except 
one  ; — who,  from  fufpicious  Circumfl^ances,  in  Refpeft  to  the  Time  of  making 
the  Infurance,  made  Enquiry,  and  foon  found  that  the  Owner  v/as  in 
PofTefiTion  of  a  Letter  from  the  Captain,  dated  in  Jamaica,  the  3d  March 
(which  he  had  received  3  Weeks  before  the  25th  May — other  Ships  arriving 
in  the  Interim)  which  advifed  fhe  was  that  Day  on  the  Point  of  Departure  : 
— which  Letter  was  concealed  from  the  Underwriters;  but  which,  any 
of  them,  with  a  little  Attention  to  Circumftances  and  Papers,  when  the 
Lofs  was  demanded,  might  have  eafily  difcovered  : — however,  the  Alfured 
lept  the  £^0  per  Cent,  received  from  all  the  Underwriters  but  one  ;  whom 
he  very  prudently  declined  to  moleft. 

19.     Insurance  of /'5000  had  been  made,    in   London,    by   Order  from 

Granada,  in  1776;    being  the  whole  Value  oi:  the  Ship  S G ., 

Capt.    P ,    and   her  Cargo  from  G ,  to  Africa,    and  back  to 

G 1 


dviii  PRELI  MI  NARY    DISCOURSE. 

;; : — May  4th  to  the  9th  1777,  another  Policy  was  underwritten  on  the 


fame,  for  £700  ;  and  May   28th,    1777,    another   Policy,    for  /'800 ;   both 

from  Africa  to  G : The  Underwriters,   on  thefe  two  laft  Policies, 

were  exprefsly  affured,  that  the  Ship  was  in  very  good  Time  ;    and  that  flie 

could  not  be  expe61ed  to  arrive  at  G ,  at  the  Time  the  lad  Letters 

came  away  from  thence. — Not  long  after.  Accounts  came  that  the  S 

G ,    had  been  taken  by   an    American    Privateer,    and   carried  into 

Martinico,  in  March  1777:  accordingly,  7£)?7ze  of  the  Underwriters,  on 
the  two  Policies  in  May,  fettled  and  paid  the  Lofs  ;  but  the  others,  on 
attending  to  Papers,  Circumftances,  and  Dates,  foon  found  Caufe  of  ftrong 
Sufpicion  of  Deceit,  and  on  further  Enquiry,  the  following /^(^j  appeared  ; 

viz.  That  the  AJJured,    Correfpondent  here  of  the  Houfe  in  G ,    had 

received  no  Orders  for  making  any  further  Infurance  than  the  ^^5000  ; — 
That  he  was,  however,    in  Poffeffion  of  the  following  Letters  from  the  faid 

Houfe  at   G ;    viz.    dated  11th   January  1777,  with  thefe   Words, 

"  We'll  be  looking  for  the  S G ,    about  the   25th  Inft.    if  no- 

unforefeen  Accident  happen  to  her  on  her  Paflage :  there  is  now  an  amazing 
Number  of  Privateers  cruizing  to  the  Weftward  of  Barbadoes ;  in  Fa£t,  it 
will  be  juft  there  the  Danger  begins." — (N.  B.  This  was  at  the  Commence- 
ment of  the  American  Hoftilities.) — Another  Letter,  dated  7th  Feb.  1777, 
with  thefe  Words,  "  We  cannot  Account  for  the  long  Delay  of  our  Brig, 

S G :" other  Letters,  of  the  4th,   gth,   14th,    17th,    and 

21ft  Feb.  and  18th  March;  wherein  no  Mention  was  made  of  the  Brig's 
Appearance  ; — -likewife,  other  Letters,  of  12th  March,  mentioning  "  Reafons 

to  believe  the  Brig  was  loft,  or  taken  ;" and,  of  igth  March,  that,  "it 

was  then  beyond  a  Doubt." Another  Letter,  of  2d  April,  advifed  that, 

"  the  Brig  left  the  Coaft  14  Weeks  ago"  [i.  e.  15th  Dec.  1776;  which  was 
indeed  15  Weeks  before):  "  we  fear  fhe  has  fallen  into  the  Hands  of  the 
Americans :   we  have  £^5000  infured  on  her,  which  is  the  full  Coft  of  her, 

and  Cargo;" (meaning  the  aforefaid /ry?   Infurance; — for  the  Houfe  at 

G knew  Nothing  of  the  two  Policies,  in  May). Now,  no  Part  of 

any  of  thefe  Letters  had  been  communicated  to  the  Infurers  of  the  laft  ttoo' 
Policies  ;  and,  therefore,  thofe  who  refufed  to  pay,  being  fued  at  Law,  filed 
a  Bill  in  Equity,  to  caufe  the  AJfured  to  give  an  Account,  on  Oath,  of  the 
Times  of  receiving  thfe  faid  Letters : — and  he  fxoore  that,  "  the  Letter  of 
nth  Jan.  was  received  19th  Mar. — and,  that  of  7th  Feb.  m  M'ly  (but 
mentioned  not  what  Day; — though  he  had,  in  Converfation  with  fonie  of 
the  Underwriters,  after  the  Lofs,  accidentally  faid  that  it  had  been  received 
a  Month  before  either  of  the  two  laft  Policies  were  made) ; — that  the  Letter  of 

4th 


PRE  LI  MI  NARY    DISCOURSE.  xHx 

4th  Feb.  was  received  19th  May;  that  thofe  of  12th  and  igtli  Mar.  and  2d 
April,  were  received  in  May;  and  that  the  Letters  of  gth,  14th,  17th,  21ft 
Fd.  and  18th  Mar.  were  received  previous  to  the  underwriting  the  two 
Policies,  in  May  ;  that  he  had  dejlroyed  the  Covers  of  thofe  Letters,  and  that 
of  7th  Feb.  ;  and  could  neither  recollect  the  precife  Days  on  which,    nor  the 

Ships  by  which,  fuch  Letters  had  been  received." The  faid  AfTured  hath 

not  fince  profecuted  his  Aftions  at  Law  againft  thofe  Underwriters,  who 
refufed  to  pay  ;  and  the  Reafons  are  very  obvious : — befides,  that  there  was 
no  Authority  for  making  the  laft  two  Policies  at  all  ;    and,   that  the  Interejl 

was  underRood,  by  the  Houfe  at  G ,  to  be  fully  covered,  by  the  Jirjl 

Infurance  of  /^sooo. N.  B.  The  Letter  of  the  2d  April,    muft  have 

been  received  before  the  28th  May;  becaufe   the  Underwriters  difcovered 

Proof  that  the  Aflured  then  knew,  that  the  S G ,  had  departed 

from  the  Coall  the   15th  Dec.   1776. Moreover,    there  was   atlually 

arrived  in  London,  an  Antigua  Gazette,  of  19th  April  1777,  wherein  was 
printed  a  Letter  from  Granada  of  22d  Mar.  mentioning  that  the  faid  Brig 

S G ,  as   alfo   another  Ship,    called    the  St.    George,    Capt- 

Moore,  had  been  taken,  and  carried  into  Martinico  ;  which  latter  Capture 
was,  accordingly,  inferted  in  Lloyd's  Book,  26th  May ;  but  that  of  the  afore- 
faid  Brig,  S G ,  was  not  inferted. 


o> 


20.     A  Cargo  of  i?MJ7^  was  infured,  in  the  H — 1 — ry,  Capt.  B g 

from  Jamaica  to  Limerick.  It  appeared,  afterwards,  from  the  Papers  and 
Letters  exhibited,  that  fhe  was  a  very  old,  and  very  bad  Veffel :  the 
AJfured  himfelf  ftiled  her,  in  one  of  his  Letters,  to  his  Agent  in  London,  "  a 
mere  old  Tub ;" — but,  it  happened  that  no  other  Ship  could  then  be  engaged 
at  Jamaica,  to  take  the  faid  Cargo. — The  Mailer's  Protejl  fet  forth  that, 
"  incoming  out  of  King/Ion  Harbour,  fhe  touched  the  Ground,  got  a  little 
Damage,  and  put  back  to  repair  it ;  foon  failed  again,  was  very  leaky  during 
all  the  Voyage ;  they  were  continually  in  Fear  of  her  foundering ;  pumped 
out  great  Quantities  of  Rum,  from  Time  to  Time ;  that,  even  after  fhe  arri- 
ved at  Limerick,    fhe  was  fo  crazy  that  fhe  overfet  at  her  Moorings : — and, 

that  about  12  Cq/ks,    Part  of  the  Cargo,    were   landed  empty.'' -On  the 

whole,  the  AfTured  flated  a  Deficiency  of  Rum,  between  the  original  Quan- 
tity, Zipper  Invoice,  and  the  Quantity  aftually  landed,  of  nearly  14  perCm^; 
— which  he  demanded,  and  infifled  iipon,  as  a  Lofs  from  the  Underwriters  : 
— two  or  three  of  whom,  having  examined  the  Accounts  and  Papers,  refufed 
to  comply  with  it ;  alleging  that,  befides  the  DeduElion  which  ought  to  be 
made  of  the  cuflomary  AUowa7ice,  for  Leakage,  they  were  of  Opinion  that 

N  no 


1  PRELIMINARY     DISCOURSE. 

no  Part  of  the  Deficiency  could  be  juftly  chargeable  to  them  ;  becaufe  it  was 
natural  to  fuppofe,  even  from  the  Words  of  the  Protejl,  that  the  whole  Lofs 
arofe  from  Leakage,  bad  Cajks,  the  Crazine/s  and  Labouring  of  the  Ship,  at 
Sea,  &c. — However,  the  Underwriters  offered  to  pay  the  Deficiency,  after 
deducting  the  vfual  Leakage;  but,  the  Affured  caufed  Aftions  at  Law  to  be 
ferved  upon  them,  even  in  Lloyd's  Coffee-Room;  and  fome  of  them,  not 
chufino-  the  Trouble,  &c.  of  a  Litigation,  nor  even  to  make  a  Calculation, 

were  intimidated,    and  paid  the  whole  Demand ; and  the  Attorney  was, 

in  Confequence,  proceeding  againft  the  others,  who  would  have  done  the 
fame  ;  but  one  of  them  went,  and  warmly  remonftrated  to  him,  and  the 
Affured's  Agent,   againft  fuch  a  Conduct  (efpecially   as  they  had  refufed  a 

Propofition   from   the   Underwriters,    for   an  Arbitration) and,    at   laft, 

although  he  did  not  convince  them  that  Nothing  was  juftly  due  from  the 
Infurers ;  yet,  he  fucceeded  in  terminating  the  Difpute,  by  fettling  £^ 
15s.  per  Cent,  including  the  Charges  already  occurred  (which,  otherwife, 
might  foon  have  been  exorbitant)  inftead  of  14  per  Cent,  as  an  Average, 

upon  the  Amount  of  the  Cargo,  which  was  about  £  4500. The  Infurers, 

on  this  Policy,  had  underwritten  £^200  each. 

21.  Impositions  have  been  frequently  praftifed,  in  obtaining  Returns 
of  Premium,  for  Convoy,  by  Means  of  Sailing  Orders,  or  Inftruftions, 
which  though  T^n^^  by  Captains  of  Men  of  War,  yet,  fometimes,  not  being 
direfted  to  any  Majlcr,  nor  having  any  Ship's  Name  mentioned,  nor  any 
Date,  have  been  procured,  collufively,  by  Mafters,  &c.  whofe  Ships  have 
aftually  failed  without  Convoy ;  and,  who  have  inferted,  or  caufed  to  be 
inferted,  in  fuch  Sailing  Orders,  Directions  to  themfelves. — Such  Returns 
have  alio  been  fometimes  made,  barely  on  Letters,  and  on  Certificates  from 
Mafters  of  Ships,  known  to  have  failed  with  Convoy ;  purporting  that  other 
Mafters  have  done  the  fame;  which  has,  afterwards,  been  difcovered  to  be 
falfe. — It  would  be  eafy  to  remedy  thofe  Deceptions,  by  the  Admiralty  giving 
Direftions  for  a  more  certain  and  regular  Mode  o^figning,  dating,  direHing, 
and  delivering  fuch  Sailing  Inftruftions,  by  the  Captains  of  Men  of  War  ; — and 
by  the  Underwriters  requiring  fliort  Affidavits  to  be  made  at  the  Foot  of  them, 
by  the  Mafters  of  Ships,  of  their  having  obferved  them,  to  the  beft  of  their 
Power: — as  well  as  by  authentick  Lijls  (which  are,  now,  ordered  to  be 
procured  from  the  Admiralty;  whereunto  are  annexed  Remarks,  by  the 
Captains  of  the  Men  of  War,  on  the  Mifbehaviour  and  Non-obfervance  of 

Mafters)   of  Ships   which  have  departed  with   Convoy. It  is   likewife  a 

Faft,  that  Returns  of  Premium  for  Convoy  have  been  wrongfully  obtained, 

where 


PRELIMINARY     DISCOURSE.  H 

where  the  Policy  was  originally  underwritten  at  a  certain  Premium,  profeffedly 
in  Confideration  of  there  being,  then,  no  Return  inferted ;  but  which  has 
been  foijled  into  the  Policy,  long  after;  the  Ship  happening  to  have  failed 
with  Convoy,  cpntrary  to  the  Affureds  firft  Expectation ;  who  meant  to  fave 
2  or  3,  or  more  per  Cent,  by  the  Underwriters  taking  the  Chance  of  the 
Vo}'age,  toith  or  without  Convoy,  at  fo  much  lefs  than  the  full  Premium. 

22.  The  B P — ,  Capt.  B ,  (orCapt.  W ,  being 

maficd,  and  having  two  Mailers)  infured  from  Dublin  to  Bourdeaux,  had 
Provifions  on  board,  contrary  to  an  Embargo,  and  being  chafed  near 
Bourdeaux  by  an  Englifli  Man  of  War,  returned ;  and  came,  at  laft,  4 
Months  after  her  Departure  from  Dublin,  to  London  ;  having  Clearances  for 
this  Port. — The  Underwriters,  without  being  informed  of  the  Rifque  they 
had  run,  by  the  Vefiel  having  adually  been  near  Bourdeaux,  narrowly  efcapino- 
the  Man  of  War,  and  being  4  Months  at  Sea,  were  requeued  to  make  a 
Return  of  Premium  o^ £2  per  Cent,  on  the  Pretence  of /g/5  Rifque  to  London 
than  to  Bourdeaux;  and,  as  if  fiie  had  come  directly  from  Dublin. — Several 
of  them  made  the  Return,  without  any  Enquiry; — others  refufed,  feeino- 
too   plainly   the   Imposition. 

23.  Very  great  Errors,  and  unjuft  Demands,  are  continually  made, 
and  acquiefced  with,  in  Regard  to  Sailors'  Wages,  in  Cafes  of  Wreck  and 
Salvage : — for  the  Elucidation  of  which,  as  well  as  of  all  other  Matters,  the 
Reader  muft  be  referred  to  \htir proper  Places ,  in  the  fubfequent  Work. 

Tnz  foregoing  are  only  a  [ew plain,  and  lafe  Specimens  (accurately  flated) 
where  Underwriters  have  been  greatly  injured,  by  implicitly  following 
EACH  other  ;— having  it,  at  the  fame  Time,  in  their  Power  to  avoid  it,  had 
they  given  a  little  fuitable  Attention  to  Fafts,  Papers,  Circumftances    Dates 
&c. — or  tolerably  underfood  the  Nature  of  the  Affairs  before  them. 

If  many  fmilar  Inftances,   and  a  Variety  of  others,  as  remarkable,  liavc 

occurred,     and   are   daily  occurring particularly,     and   amazingly,     in 

Matters  of  Average even  within  the  Knowledge  o{  one  Perfon  ; — what 

Volumes  oS.  this  Nature  might  not  be  formed,  could  Communications  be 
obtaiued  of  fuch  Tranfafitions  with  the  Generality  of  Underwriters  .^ — ^and, 
how  much  more  fo,  of  the  numerous  concealed  and  undifc  over  able  Frauds,  and 

Impofitions  upon  them ;  befides  all  fuch  as  they  do  deteft,  and  oppofe? 

It  would  be  a  very  curious  Colleclion  ;  and,  perhaps,  of  itfelf,  like  a  Mirror, 

more 


lii  PRELIMINARY     DISCOURSE, 

more    than    any   Thing   elfe,    expofe   the   Crimes    and    Follies,    which 

reign  in  the  Bufinefs  of  Infurance. But  thefe   Things,    even  when   dif- 

covered,  being  generally  fuffered  to  pafs  into  Oblivion,  without  meeting  with 
that  Indignation,    and  Refentmcnt,  which  they  merit,  perpetually  recur. 


The  following  is,  however,  one  ftriking  Inflance  of  the  Contrary;  and 
may  ferve  to  prove,  inconteftably,  the  great  Propriety  and  Efficacy  of 
eflablifhing  fome  fuch  Association,  and  alfo  amicable  Judicature,*  as 
have  been  herein  before  fuggefted ;  fince  more  was  effefted  at  only  one 
Meeting  of  the  Infurers,  Merchants,  &c.  hy  ^  Refolutiomimor\g^  them/elves, 
than  could  have  been  done  by  Jifty  Law  Suits. 

A  VERY  extraordinary  Innovation  was  lately  attempted  to  be  made  in 
the  long  edablilhed  printed  Form  of  Policies  of  Infurance  ;  by  caufing  the 
following  Words  to  be  inferted   {printed)  in  the  Body  thereof;  immediately 

after  the  Words  "  Rate  and  Quantity  of  his  Sum  herein  affHred ;"  viz. 

"  And  it  is  agreed  by  us  the  Infurers,  in  Cafe  any  Lofs,  or  Average  (or 
Return  of  Premium)  fhall  happen  to  the  Ship,  or  Goods,  hereby  affured, 
that  we  will  allow  the  Balance  of  our  refpcBive  Accounts,  due  to  us  from  the 
Perfon  or  Perfons  to  whom  we  fhall  underwrite  this  Policy,  towards  the 
Payment  of  fuch  Lofs,  Average,  or  Return  ;  or  fo  much  of  fuch  Balance  as 

the  Lofs,  Average,  or  Return  may  amount  to." Alfo,  at  the  Bottom  of 

the  Policy,  in  fmall  Print,    the  following  Words,  viz. "  It  is  particularly 

agreed  that  any  hifujfficiency  of  the  Ship,  or  Deviation  of  the  Mailer,  un- 
known to  the  Affured,  fliall  not  prejudice  this  Infurance." 

These  Clavfcs,  efpecially  what  relates  to  Deviation,  had  been  very  injidi- 
oujly,  and  very  fraudulently  foijled  into  fome  Policies  ;  which  were  under- 
written to  large  Amounts :  and  not  the  leaft  Intimation  thereof  was  given  to 
the  Underwriters  of  them ;  'till,  having  accidentally  difcovered  them,  they 
were  very  juflly  alarmed  at  a  Proceeding  which  ought  to  cover  the  Authors 
and  Abettors  of  it  with  Shame  and  Confufion  ;  whatever  might  be  their 
Rank,  as  Brokers,  or  otherwife. 

Accordingly,  thofe  Innovations  have  been  intirely  exploded,  and 
loudly  reprobated,  by  the  general  Voice ;    and  the  long  accuftomed  printed 

•  When  the  Plan  of  fuch  a  Judicature  fhould  be  duly  formed,  and  improved  ;  it  would  be  very 
proper  to  apply  to  the  Legtflalurc  for  an  Eftabliniment  of  it's  Authority,  by  an  Aa  of  Parliament. 

Form 


PRELIMINARY     DISCOURSE.  liii 

Form  of  Policies  confirmed,  at  a  numerous  Meeting  of  Merchants,  Infurers, 
and  Brokers,  held  at  Lloyd's  Coffee-Houfe,  12th  January  1779,  for  that 
Purpofe : — for,  were  they  in  the  leaft  countenanced,  or  could  fuch  occajional 
and  crafty  Interpolations,  even  of  a  fingle  Word,  or  Variations  from  the 
general,  fettled,  printed  Form  of  Policies,  receive  a  Sanflion  in  our  Courts, 
it  would  unhinge  the  whole  prefent  S^ftem  of  Juri/J>'rttdence  reCpeSi'ing  them  ; 
which  has  been  founded  on  thatjettled  Form : — and  this,  being  notorious, 
and  generally  underflood,  is  not  fuppofed,  or  expected,  to  be  read  by 
Underwriters,  when  they  fubfcribe  it ;  but  the  Honefty  of  the  Broker  is 
always  relied  on,  that  there  is  no  Forgery  impofed  upon  them,  in  that 
Refpeft : — otherwife,  it  would  become  abfolutely  neceffary,  for  every  indi- 
vidual Infurer,  to  examine  very  narrowly,  and  even  verbatim,  every  Policy, 
before  he  underwrites  it,  left  veto  Terms  fhould  be  added,  or  old  ones  altered ; 
which  would  not  only  be  impracticable,  but  quite  fruftrate  the  Execution  of 
the  Bufinefs  itfelf. 

Without  animadverting  upon  the  feveral  private,  fubtile,  zx\^  felf- 
interejled  Purpofes,  defigned  to  be  anfwered  by  the  beforementioned,  or 
fimilar  Interpolations  ;  or,  how  far  they  might,  or  might  not  really  operate 
in  Law,  or  Juftice  ;  W'hich  is  very  queftionable,  with  Regard  to  feveral  Cafes 
that  might  happen ;  and,  particularly,  with  Refpeft  to  third  Perfons,  as 
Aflignees  of  Bankrupts,  &c.  I  think  it  may  be  aflerted,  that  they  would  be 
an  Inlet  to  ftill  more  frequent  and  violent  Frauds,  Confufion,  and  extraordi- 
nary Litigation: efpecially  the  Introduction  of  the  Words,  "  any  Deviation 

of  the  Majler  unknown  to  the  Affured  fhall  not  prejudice  this  Infurance," 
would  be  big  with  certain  and  conftant  Collufion,  Deceit,  and  Perjury ; 
and,  productive  of  ruinous  Injuries  to  Infurers. 

The  Claufe,  relating  to  "  Infufficiency  of  the  Ship,"  though  it  had  been 
inferted  for  fome  Time  before,  at  the  Bottom  of  fome  Policies,  was  by  no 
Means  general : — it  took  it's  Rife  from  the  ftrongly  and  repeatedly  contefted, 
and  remarkable  Cafe  oii\\e  Mills  Frigate,  in  1764;  the  whole  of  which,  with 
all  the  Arguments  and  Reafons,  pro  and  con,  relative  thereto,  are  in  the 
Authors  PoffefTion,  and  will  be  communicated  in  their  proper  Place. 

In  the  mean  Time,  it  might  be  afked,  as  to  the  Interpolations  which  have 
been  complained  of,— Whether  cmmQnx.  Brokers,  Sic.  of  extenfive  Bufinefs, 
who  have  commonly  large  Balances  in  Hand,  due  to  Underwriters,  might 
not,    in/ecret  Connexion,  or  Participation,  with  other  Perfons,  become  alfo 

O  Builders^ 


liv  PRELIMINARY    DISCOURSE. 

Builders,  Owners,  Dock  Majiers,  Repairers  and  Patchers  up  of  Ships,  Con- 
traaors.  Merchants,  Freighters,  &c.  &c.  and,  a^mg  m  all  or  fever al  oi 
thefe  Capacities  at  the  fame  Time,  infure  their  own  Ships,  and  Cargoes,  at 
hijrh  Valuations  •  avail  themfelves  of  the  aforefaid  Claufes,  refpefting  Infuffi- 
ciency,  and  Deviation,  unknown  to  them ;  grow  very  rich  indeed,  by  Means 
of thofe  and  other  advantageous  Claufes;  and  by  detaining  and  fecuring,  in 
their  own  Hands,  the  Balances  which  might  be  due  to  the  unfortunate  Dupes, 
the  Infurers? — who  might,  as  many  would,  inevitably,  through  fuch  Ma- 
nceuvrcs,  become  infoK  ent :— for,  Majlers  of  Ships,  who  now,  frequently 
enouo^h,  deviate  without  Detection,  might  then,  and  certainly  would,  collu- 
fively  or  otherwife,  make  fever al  Voyages  inllead  of  one  ;  or,  with  Letters  of 
Marque,  cruize  half  over  the  World,  af  the  Rifque  of  the  Underwriters  :— 
and,  fuch  Brokers,  privately  fo  interejled  in  many  Ships,  &c.  on  which  they 
made  Infurance,  might,  in  Cafes  of  Difpute,  even  have  Opportunity,  unfuf- 

pefted,  to  appear  as  Evidence  in  their  oion  Caufes. Divers  other  ferious 

Evils  would,  from  Time  to  Time,  grow  out  of  fuch  entrapping  Innovations, 
and  Interpolations. 

With  Regard  to  Infurance  Brokers,    in  general; the  Conduft  of 

fcveral  of  them  is,  undeniably,  in  many  Refpefts,  very  reproachable :  and, 
no  inconfiderable  Part  of  thofe  Diforders,  and  Difputes,  which  occur,  and 
have  already  been  enlarged  upon,  may  be  juftly  attributed  to  their  Inability, 
Difingenuoufnefs,  and  III- Manners ;  or,  to  their  Sef-Interejl,  Partiality,  and 
Collufion,  in  favour  of  the  Infureds,  their  Employers,  or  otherwife ;  coun- 
tenancing, abetting,  and  taking,  in  numerous  Inflances,  every  Advantage, 
howfoever  unreafonable,  to  the  manifeft  Prejudice,  and  often  very  great 
Wrono-  of  Infurers ;  as  well  in  the  procuring  Policies  to  be  underwritten,  as  in 

the  fubfequent  Tranfaftions,  refpefting  Loffes,  Averages,  Returns,  &c. ■ 

in  all  which,  fo  far  are  divers  Brokers  from  afting  with  that  due  Regard  to 
Equality,  and  Jujiice,  which  is  their  incumbent  Duty,  \\\  obtaining  and 
giving yiizr  2ind  t^xo^qx  Informations,  nnd  Explanations ;  and,  in  Attention 
to  the  jit/Z  Requifitions,  Complaints,  and  Reafons  of  Infurers  ;  that  fame  o£ 
them  become,  not  unfrequently,  though  on  feveral  Occafions  unperceived, 
the  very  Injlruments  of  the  greateft  Deception,  and  Injury  ;  and,  confequently, 
the  Promoters  of  Difcord,  and  Litigation. 

Ik  other  Countries,  the  RcfriElions  which  all  Brokers  are  laid  under,   by 
Law,  touching  their  Competency,  and   Condud,  render  them,   as  they  ought 

to    be,    the  Agents,    or  Servants,    of  the   mercantile   Public : but,  in 

England, 


PRELIMINARY     DISCOURSE.  \v 

England,  Infurance  Brokers  are  permitted  to  afTume  the  Afcendency,  as 
Principals ;  and  to  become,  in  Faft,  the  Majlers,  who  prefcribe,  ditlate, 
and  govern,  almofl  every  Thing,  relative  to  that  Bufinefs ;  with  but  little 
Regard  to  any  certain  Principles,  Rule,  Method,  Order,  or  Control,  what- 
foever. — In  fhort,  thofe  Affairs,  in  great  Part,  run  riot :  Brokers  are,  at  the 
fame  Time,    Merchants  and  Infurers ;  and.    Merchants  and  Infurers  are,  at 

the   fame    Time,     Brokers. Why    do   not   Apothecaries    aft,     alfo,    as 

Phyficians;  Parfons,  as  Clerks;  Attornies,  as  Counfellors ;  diXid  vice verfa ? — • 
The  Law,  for  the  moft  Part,  confines  each  of  thefe  to  his  particular  Sphere. 

It  is  not  within  the  intended  Limits  of  this  prefatory  Difcourfe,  to  enter 
into  an  Enumeration  of  various  Inftances  of  the  Irregularity,  InexpertnefSf 
and  Culpability  of  fundry  Brokers ;  nor,  to  expatiate  on  the  proper  Means 
of  Regulation,  and  Reformation ;  which  are,  however,  indifputably  very 
needful,  relative  as  well  to  their  Qualification,  and  impartial  Execution 
of  their  Bufinefs,  as  to  their  Accounts,  Payments,  Allowances,  and  perfonal 
Behaviour  ;  their  Connexions,  Participations  in  Ships,  and  Cargoes ;  their 
underwriting  to  each  other ;  and  feveral  other  Particulars : — all  which,  it  has 
been  thought  abfolutely  neceffary,  in  foreign  maritime  Countries,  precifely 
and  refpeftively  to  prefcribe,  or  prohibit ;  and  to  regulate,  by  public  Authority, 
under  the  Obligation  of  an  Oath:  as  alfo,  in  extraordinary  Cafes,  fevere 
Pains,  or  Penalties,  heCides  Difmifioji  from  Office ,  &c.  for  Non-obfervance  ; 
— but,  in  which,  the  Laws  of  this  Country  are  intirely  deficient. 

I  SHALL,  therefore,  referve  the  fundry  very  inter efiing  Matters,  and 
Obfervations,    which  I  have  to  communicate,    concerning  Brokers,    for 

a  more  fuitable  Place  : making  Ufe,  however,  of  the  prefent  Opportunity 

of  bearing  Teftimony,  and  doing  all  due  Juftice,  to  the  Honefiy,  Integrity, 
and  Abilities,  of  feveral  Gentlemen,  now  employed  in  this  ProfeflTion ;  whofe 
Demeanour,  in  the  Exercife  of  it,  merits  the  highefl  Efieem  of  the  Parties 
between  whom  they  tranfaft,  and  the  Imitation  of  the  Reft  of  their  Brethren. 

It  would  be  highly  im.proper,  on  Occafion  of  thefe  Animadverfions, 
to  let  another  great  Evil,  which  by  far  too  much  prevails  in  Lloyd's  Coffee- 
Houfe,  and,  fometimes,  fatally  for  thofe  who  are  concerned  in  it,  efcape 
Remark: — I  mean,  what  is  called  Speculation,  or  gaming  Policies; — 
often  fet  on  Foot,  and  promoted,  for  many  Thoufands  of  Pounds,  even  by 
Merchants,    Infurers,    and  Brokers,  who  in  other  Refpefts  ftand  fair  in  the 

Eye  of  the  mercantile  World,    as  Men  of  Rank,    and  Reputation. Thefe 

Things 


Ivi  PRELIMINARY     DISCOURSE. 

Thio^^s  are,  undoubtedly,  not  only  difgraceful  to  the  otherwife  Refpeftability 
of  the  Characlers  engaged  in  them  ;  but  are  of  very  hurtful  Example  ;  tend 
to  fap,  and   do  really  much  affeft,    not  only  the  Solidity,    and   Credit,  of 
private  Perfons  in  the  commercial  Clafs,  but  the  national  Interefl : — for,  they 
render  Infurers  fufpefted, — Foreigners  apprehenfive, — the  Security  of  Com- 
merce precarious, — contaminate  Probity, — create  lU-Will,    as  amongft  other 
Gamblers,— ^xo&ucQ  Lame  Ducks, — and  may  in  Time  introduce,  at  Lloyd's 
as  veil  as  Jonathan's,  fuch  appofite  and  polite  Appellations  as  5a// and 
Bear: — and,  therefore,  this  Sort  of  Contrafts,  or  Wagers,  ought  not  only 
to  be  intirely  difcountenanced,  and  rendered  null,    by  Law, — as  is  done,  by 
the  late  Act   14  Geo.  3.  c.  48;    making  void  all  Infurances  on  Lives,    or 
any  other  Event,  or  Events,  except  for  the  Value  of  the  Interejl  of  the  Infured 
therein  ;    and,    unlefs  the  Name  of  thofe  who  are  to  be  benefited  by  fuch 
Infurance  be  inferted  in  the  Policy  ; — but,  fome  proper  Stigmas,    or  Penal- 
tics,  fhould  alfo  be  inflifted  upon  thofe  concerned  in  them. 

Long  before  that  Statute,  Infurance  was  confidered,  incur  Courts,  as 
may  appear  by  feveral  Adjudications,  as  an  "  Indemnity  only  for  real  Lojfes  ;. 
and  not  as  the  Means  for  defigning  Men  to  make  improper  Gains :" — and. 
Lord  Hardwicke  faid,  "  Infurance  implies  an  Interefl,  a  Property  in  the 
Thing  infured  ; — is  no,t  to  cover  an  imaginary  Profit,  but  to  fecure  real  In- 
terejl : and,  that  he  remembered  that  Policies  made  Intere/l  or  no  Interefl, 

were  cdWedi  fraudulent ;    and  were,    latterly,    allowed  only  with  Refpeft  to 

foreign  Commerce,  for  political  Reafons  ;"    which  he  ftates. — Sadlers'  Camp. 

V.    Badcock. — Again  ;    "Infurance  was  fijft  fet  up  for  the  Benefit  of  Trade, 

Sec.  but  if  fuch  ill  Praflices  (as  infuring  without  Interefl)  were  ufed,    it  would 

turn  to  the  Ruin  of  Trade." — Wittingham  v.  Thornborough,  in  Chan. 

Divers  other  Authorities  might  be  quoted  to  the  like  Effett ; — and,  provinp- 
that  "Engagements  of  the  Nature  of  Wagers,  under  the  San6lion,  and 
Form  of  Infurance,  tlie  Fruits  of  Idlenefs,  without  Relation  to  what  may  be 
called  Bufnefs,  were,    formerly,    deemed  not  to  Merit  the  Countenance  of 

Law." However,   the  Matter  of  Infurance,   Interefl  or  no  Interefl,    with 

Refpe6l  to  Ships,  and  Merchandifes,  was,  on  Account  of  the  great  Frauds, 
and  Deceit,    praftifed  therein,    exprefly  prohibited  by  Statute,    19  Geo.   2.. 

c.    37  ; except  on  private  Ships  of  War,   for   Account  of  the   Owners  ;. 

and,  on  Effects  from  any  Ports  in  Europe,  or  America,  in  the  Poffeflion 
of  the  Crowns  of  Spain,   or  Portugal. 

From  all  that  has  been  faid,   let  it  not  be  imagined  that  it  is  intended,    in 
the  fmalleft  Degree  whatever,   to  promote  or  favour  any  Thing,   on  the 

Part 


PRELIMINARY     DISCOURSE.  Ivii 

Part  of  Inficrers,    of  the  Nature  of  Cavil,    Difpute,    or  Want  of  current 

Condua. Alas  !    to  what  End  fhould  they  cavil  ^    to  an  infliUible,    and 

heavy  Expence  of  Litigation,  as  well  as  incurring  the  meaneft  Malevolence, 
if  without   x\\&  mo^  {oM  2.n6  irrsfragable  Grounds :— on  the  Contrary,  the 
profefled  Drift  of  this  Difcourfe,    and  of  what  is  to  follow  it,    is  to  remove, 
as  much  as  poffible,    the  Prevakncy  of  thofe  Causes,    from  the  very  Nature 
of  which  Difpute  mujl  frequently  arife,    and   cannot  be  avoided  :— but,    in 
every  Inftance  where  Circumftances  appear /azr,   open,  and  unfufpicious  ; 
and  that  Infureds  and  Brokers   are  candid,    communicative,    honejt ; — the 
former,  in  their  original  Intlruftions,    Orders,  and  Informations  ;    the  latter^ 
in  being  willing  and  difpofed.  to  re61.ify  Midakes,  and   Errors;  s^ndi  both,  to 
deteft  Fraud  and  Impofition ; — Then,  and  in  every  fuch  Cafe,  Infurers  ought 
always  to  give  them  the  Advantage  ;  and,  intirely  difregarding  fmall  Matters, 
fettle  and  pay  every  jii/i  Claim  readily,  freely,  generovjly: — without  which,  no 
more  than  without  Good  Faith,  and  Honour,    on  the  Part  of  the  Affureds, 
their  mutual  Interefl,  or  Safety,  cannot  be  preferved. 

But,  in  the  Name  of  Common-Senfe,  and  for  the  Sake  of  common  Ho- 
nefty  and  common  Juftice,  let  Infurers  have,  at  leaft,  fair  Play  : — let  them 
not  be  deceived,  tricked,  fometimes  infulted,  and  even  defamed,  when  That 
only  is  what  they  require  : — fince  it  muft  be  acknowledged  that  an  Infurer 
always  refts  on  very  unequal  Ground  ;  is  fubjeft  to  every  Species  of  Illufon, 
Sophijiry,  and  Subterfuge,  from  all  the  Parties  combined,  or  concerned  on  the 
Side  of  the  Infured ; — that  he  flands  alone,  relying  on,  confiding  in,  the 
Truth  and  fair  Dealing  of  the  Contraftors  with  him  ;  afts  merely  on  the 
defevfive  ;  has  it  not  in  his  Power  to  ufe  any  Sort  of  Deception  ;  or  take  any 
fecret  Advantage  whatever  of  them  ;  and  can  neither  elude,  nor  alter  the 
Force  and  Obligation  of  his  Signature, 

In  Truth,  I  believe  that,  be  the  Cry  even  as  loud  as  that  of  Hounds  after 
a  Hare,  which  is  fometimes  the  Cafe,  the  Inflances  are  very  few,  where  Under- 
writers are  fo  weak,  and  regardlefs  of  the  Confequences,  as  to  litigate,  or 
difpute  without  any  real,  or  apparent  Caufe  ; — or  where  there  is  no  Evafion, 
and  Denial  of  fair  and  fatisfaftory  Explanations,  on  the  Part  of  the  Affured, 
or  Broker  : — although,  from  what  has  been  remarked,  it  cannot  be  deemed 
extraordinary,  if  they  be  fometimes  miftaken. 

That  all  thefe  Things  are  ^o,    as  have  been  herein  reprefented,    cannot 
be  denied.— It  muft,  therefore,    I  think,    appear  evident  that  Nothing  could 

P  have 


Iviii  PRELIMINARY     DISCOURSE. 

have  a  greater  Tendency  to  reclify,  and  remedy  the  various  Inconveniences 
and  Abufcs  complained  of;  and  Avhich  fo  much  affeft  all  Parties,  either 
direftly  or  confequentially ;  than  for  all  Perfons  concerned  in  Matters  of 

Infurance  to  endeavour  to  make  themfelves  well  acquainted  with  them  : 

and,  to  this  End,  that  every  Thing  theoretical  and  praaical  relating  to  that 
Subjea,  were  colleaed,  mmhodifed,  and  publiOied,  in  a  Manner  well 
adapted  for  immediate  Infpeftion,  and  general  Comprehenfion,  as  far  as 
may  be  praclicable,  in  every  Point  that  might  occur. 

And,  although  the  Laws,  Doctrines,  Rules,  Ufages,  and  Praclice  of  Infu- 
rance, will  now  be  found  to  form,  in  the  toholc,  a  very  extenfive,  complicate, 
and  difficult  Science;  requiring  much  Study  to  attain  completely  ;  neverthelefs, 
from  the  Commencement  of  the  Praftice  of  Infurance,  to  the  prefent  Time, 
the  Legiflatures,  eminent  Lawyers,  judicious  Merchants,  and  others,  of  all 
the  principal  maritime  States  of  Europe,  have  furnilhed  us  with  many  wife 
Ordinances,  prudent  Regulations,  and  ufeful  Inftruclions,  founded  on  their 
refpeclive  Knowledge  and  Experience,  touching  a  very  great  Variety  of  Par- 
ticulars : — from  which,  as  well  as  from  the  Laws,  numerous  Decifions,  and 
valuable  Books  of  our  own  Country  ;  and,  from  an  attentive  Obfervation,  and 
due  Refle6lion  upon  what  is  actually  pafiing  in  our  own  Times :  may  be 
deduced  a  comprehenfive,  practical,  and  very  ample  Inftitute  of  every  Thing 
that  is  needful  to  be  known,  concerning  the  very  fruitful,  and  indeed  inex- 
haujlible  Subje6l  in  Oueilion. 

'•Great  Alterations  have  been  made  in  the  Adminillration  of  private 

Juflice,  in  the  Courfe  of  the  prefent  Century  : amongft  which,  the  great 

Syftem  of  marine  Jurifprudence,  of  which  the  Foundations  have  been  laid, 
by  clearly  developing  the  Principles  on  which  Policies  of  Insurance  are 
founded  ;  and,  by  happily  applying  thofe  Principles  to  particular  Cafes^ — 
4  Black.  Com.  435. 

"  The  Learning  relating  to  marine  hfurances  hath,  of  late  Years,  been 
greatly  improved,  by  a  Series  o^  judicial  Decijions  ;  which  have  elbblifhed 
the  Law  in  fuch  a  Variety  of  Cafes,  that  they  would  form  a  very  complete 
Title  in  a  Code  oi  commercial  Jurifprudence" — 2  Black.  Com.  431. 

That  no  Merchant,  ox Infurer,  in  England,  of  Erudition,  Experience, 
Judgment,  and  Candour,  hath  hitherto  undertaken  to  execute  the  ufeful  and 
neceffary,  though  very  laborious  Talk,  abovementioned,  is  Matter  of  much 

Rrgrct, 


PRELIMINARY     DISCOURSE.  lix 

Jlegret,    rather  than  Wonder ;    confidering  the  great  Expence  of  valuable 

Time,  and  even  Health,  abfolutely  requifite  for  fuch  a  Compilation  : the 

Tedioufnefs  and  Difficulty  of  procuring,  examining,  comparing,  and  felecl- 
ing  all  the  needful  Materials ;  the  conftant  Interference  of  it  with  other  more 
immediate  and  daily  Avocations,  in  the  Profecution  of  current  Bufinefs ; 
. — and  above  all, — and  than  which  Nothing  is  more  ungrateful,  nor  more 
intimidating, — the  Prejudices,  Envy,  or  Ill-Will,  and  efpecialiy  the  partial 
Interejis,  to  be  combated  ;  and  <iivers  other  difcouraging  Circumftances. 

And,  therefore,  notwithftanding  all  my  Refearches,  I  have  not  been  able 
to  difcover,  either  in  our  own,  or  any  other  Language,  any  fuch  Work,  com- 
pofed  profefledly  on  the  Subjeft  of  Infurance  in  general. 

Mr.  Magen's  EJfay  (publiflied  in  1755,  in  two  Volumes,  Quarto)  is 
properly  fo  called  ;  feeing  that,  the  few  Pages,  in  the  fiid  Volume,  of  which 
only  it  confifts,  though  very  judicioufly  felefted,  contain  merely  the  general 
Rudiments  of  Infurance; — and  thofe,  chiefly,  as  obferved  in  different 
foreign  Places;  being,  at  firft,  publiflied  in  Hamburg,  1753: — but  by  no 
Means  that  full,  and  circumflantial  Information,  on  the  very  great  Diverhty 
of  Matters,   and  Points,  which,    efpecialiy   fince  that  Time,    is  become  ne- 

ceflary  in  this  Country, The  Reft  of  his  firfl;  Volume  is  principally  taken 

up  with  particular  Cafes,  or  Adjujlments  of  Lofles,  Averages,  &c.  which 
happened  within  his  own  Cognizance  ;  ftated  with  extreme  Prolixity,  and 
Minutenefs  of  Figures,  Calculations,  Tedioufnefs  of  Accounts,  Forms  of 
Invoices,  Bills  of  Lading,  Protefts,  Certificates,  &c.  &c.  with  Marks, 
Numbers,  Items,  &c.  all  at  large  :  a  great  Part  of  which  very  few  Men  of 
Bufinefs  can  think  it  otherwife  than  embarrafling,  and  Time  loft;,    to  perufe. 

The  2d  Volume  is   filled,   intirely,  wath  a  Colleftion  of  fundry  foreign 

Ordinances,  Englifli  A6ls  of  Parliament,  and  feveral  of  our  Treaties  with 
forergn  Powers  : — a  confiderable  Part  of  all  which  relates  to  various  Matters 
unconnefted  with  Infurance  ;  and,  fome  other  Parts  are  now  obfolete,  expired, 
or  no  longer  in  Force  ; — together  with  feveral  Forms  of  Policies,  and  Bot- 
tomry Bonds ; — the  whole,  with  their  Titles,  Preambles,  Formalities, 
intermixed  Matters,  &c.  vit  full  Length, 

The  Infufficiency,  therefore,  of  that  Work  (which  has,  neverthelefs,  great 
Merit,  and  been  of  much  Utility  ;  and  of  wdiich  I  fliall,  by  and  by,  take 
further  and  due  Notice)  to  anfwer,    efpecialiy  in   the  prefent  Times,    the 

Intention 


Ix  PRE  LI  MI  KARY    DISCOURSE. 

Intention  of  thofe  mw^fi^zfli^/y  ufefu],  praftical,  and  exteri^ve  Purposes,  to  all 
Perfons,  which  I  have  already  fuggefted  an  Idea  of,  muft  be  obvious. 

In  divers  Books,  on  the  Subjects  of  Lata,  Trade,  Sec.  are  to  be  found,  in- 
termixed and  difperfed,  {hort  Matters  and  Cafes  relative  to  Infurance  : — fuch 
as  in  Malynes's  Lex  Mercatoria; — Molloy  de  J^ire  Maritimo  et  Navali; — 
Beauvi'es's  Lex  Merc,  rediv. — PosTLETHVl^MTE's  DzS. — Cunningham's 
Laios  of  Bank  Notes,  Bills  of  Exchange  and  Infurances ; — Parker's 
Latos  o^  Shipping  and  hifurance,  &c. — but,  fome  of  thefe,  comprifing  merely 
Notes,  Abftrafts  of  Ads  of  Parliament,  and  adjudged  Cafes;  and  others 
fome  Cafes  at  large;  are,  of  Courfe,  very  defeftive,  in  Refpeft  of  the  vafl 

Variety  of  Matters  concerning  Infurance  in  general : the  laft  mentioned 

Book  being  fimply  a  ColleElion  of  fundry  Statutes ailarge,  and  fome  adjudged 
Cafes,  relating  to  Shipping,  Navigation,  Trade,  Fifheries,  Colonies,  In- 
furance, &c. The  Index  to  them  is  remarkably  negligent,  inaccurate,  and 

in  many  Refpefts  ufelefs. 

Such  fmall  Portions  of  various  other  Books,  which  contain  any  Thing 
relative  to  Infurance,  are  fo  confufed,  by  being  fluffed  with  mifcellaneous, 
incoherent,  or  antiquated  Matters,  that  whoever  fearches  therein,  though 
with  great  Trouble,  inflead  of  finding  Satisfaftion,  is  only  bewildered  and 
confounded. 

In  Reality,  it  is  difionourable  for  our  Country,  difcreditable  to  her  Mer- 
chants and  Infurers,  and  very  inconvenient  for  all  Perfons  who  are  dire6lly, 
or  relatively,  concerned  about  maritime,  mercantile,  and  Infurance  Affairs, 
to  have  continued,  even  in  the  Zenith  of  her  commercial  Splendour,  without 
any  well  compofed  Code,  or  Ordinance,  confilling  of  Articles  which  might 
apply  to  the  Occurrences  of  Infurance  in  general,  eftablilhed  by  public  Au- 
thority;  or  any  other  authentic  and  comprehenfive  Syflem  of  Regulations, 
or  Inftruftions  whatever,  compiled  and  digefted  by  able  private  Hands  ;  to 
which  conftant  Recourfe  might  be  had,  on  all  Occafions  :  and  which  might 
have,  in  a  great  Meafure,  the  happy  Efteft  of  preventing  thofe  perpetual 
Mifunderftandings,  Altercations,  and  the  feveral  odious  Litigations  that,  in 
every  Term,  take  Place ;  many  of  them  even  with  Regard  to  Points,  and 
Queftions,  which  it  might  appear,  f^vom  fuch  a  Recourfe  as  abovementioned, 

had  already,    long  before,  been  difcuffed  and  decided  in  our  Courts : but 

which,  through  the  /uperfcial,  random,  and  infnaring  Manner  in  which 
this  Bufinefs  is  ufually  performed  ;  and  the  little  Care  that  is  taken,  unlcfs  by 

afem 


P  RE  LI  MI  NARY     DISCOURSE.  \\i 

a  Jezo  Perfons,  to  underfland,  even  the  general  Principles  of  it,  are  for  the 
mofl  Part  unknown,  or  difregarded  ;  and,  by  the  very  Perfons  too  who  are 
chiefly  interefted  in  tiiem  ;  except  when  occafionally  fought  for,  on  their 
Behalf,  by  Lawyers^ 

Thz  Joregoing  Conjiderations,  derived  from  the  deliberate  Attention,  Expe- 
rience, and  conflant  Obfervation  of  many  Years ;  founded  alfo  on  a  Con- 
viftion  of  the  Truth  and  Certainty  of  all  that  hath  been  reprefented,  with 
Regard  to  the  numerous  Evils  which  are  fo  aJioniJJiingly  prevalent,  and  daily 
increajing  in  the  Practice  of  Infurance  ;  and,  of  the  con^G<\\xtnt  public  In- 
convenience, as  well  as  private  Mifchiefs  which  arife  from  them  ;  thofe  Con- 
fiderations,  I  fay,  conftitute  the  genuine  Motive  of  this  Addrefs  :  which  is 
not  intended  merely  to  defcribe,  and  deplore  thofe  Evils ;  but,  to  offer  what 
it  is  prefumable  may  prove,  in  a  confiderable  Degree,  the  Means  of  Remedy, 
or  Prevention,  for  the  future  ;  by  fubmitting  to  the  Attention  of  the  Public 
the  ^oWoWmg  fiimmary  Account  of  an  entirely  new  and  copious  Work,  which- 
will  fucceed  this  Difcourfe,  on  the  Subjeft  of  Insurance  in  general. 


I.       Of    the     D    E    S    I    G    K 


'TP  H  E  very  great  Variety,  Intricacy,  and  uncertain  Circumflances  of  the 
Objefts  of  Insurance,  render  it  incapable  of  being  reduced  to  a 
regular  System,  like  the  general  and  fundamental  Arts  and  Sciences: — ■ 
we  muft,  therefore,  be  content  with  "  tracing  the  wandering,  though  true. 
Outlines  of  it,  as  accurately  as  tlie  Nature  of  it  will  admit ;  and  marking, 
the  /al/e  Ways,  and  dangerous  Paths,  which  ought  to  be  avoided." 

I  PROPOSE,  then,  to  form  an  ample,  yet  /elc6l  Digest  of  all  the 
Matters  whatfoever,  which  in  any  Wife  relate  to  Infurance  : — by  entering 
into  this  Subjeft  at  large  ;  and  by  reducing  to  a  compaft,  methodical,  and 
convenient  Form,  and  Order,  for  general  and  common  Ufe,  all  the  requifite 
Parts  of  the  confufcd  Mafs  of  Learning  and  Materials  relative  to  it ;  which 
lie  indifcriminaiely  difperfed,  and  blended  with  an  Infinity  of  other 
Matters,  quite  unconne6led  with  it,  in  a  great  Number  of  Books,  as  well  in 
foreign  Languages  as  our  own  : — and,  to  illuftrate  the  fame  with  fundry  new 

and   curious    Particulars,    praflical    Obfervations,    and    Remarks. The 

whole  intended  to  form  a  complete  Body  of  elementary,    judicial, 

Q  and 


Ixii  PRELIMINARY     DISCOURSE. 

and  EXPERIMENTAL  Knowledge  of  Insurance; — difpofed  in  fuch  Man- 
ner as  may  be  the  beft  adapted  to  convey  to  every  Reader  immediate, 
full,  and  fatisfatlory  Information,  upon  every  Head,  or  Point,  that  may  be 

needful,  or  likely  to  occur  ; and  calculated   to  alTift,  fettle,  and  render 

correcl  and  uniform,  the  public  Judgment ;  by  a  clear  Inveftigation,  and 
Elucidation,  of  the  jtijl  RuLzs,  and  /rwe  Principles  of  Infurance,  in  all 
probable  Cafes  and  Circumflances  ;  and  by  a  Deteftion,  and  Refutation  of 
xar'wus  erroneous,  ^nd pemicioics  Pkacticks  therein. 

Such  is  the  ^^?i^ra/ Scope  of  the  Undertaking: — of  which,  what  follows 
will  convey  a  more  comprchenfive  Idea  of  the  Extenjivenefs  of 

II.         The         PLAN'. 

Which  zvill  compri/e, 

1.  A  N  Arrangement,  in  ALPHABETICAL  ORDER,  of  all  the  Subjea 
Matters,  under  the  refpeftive  Heads,  or  Titles,  to  which  they  pro- 
perly belong: — This  Method  fceming  to  be,  of  all  others,  the  befl;  adapted 
for  clafling  and  comprehending,  and  the  moft  fuitable  and  eafy  Vehicle  of 
communicating,  every  Thing  which  relates  to  each  particular  and  diflinft 
Obieft,  which  may  be  fought  for ; — and  far  preferable  to  a  more  fyjlematic, 
diffufe,  or  formal  Treatife  ;  which  few,  efpecially  Men  of  Bufinefs,  would 
have  Leifure  to  read,  fewer  retain,  and  wherein  none  could  readily  find  the 

Information  he  might  be  in  fearch  of. Nor  is  any  other  Method  what- 

foever  more  ufeful,  in  general,  than  the  Alphabetical,  to  raife  Contributions 
for  the  public  Service,  and  to  collect  all  that  is  worthy  of  being  known  on 
any  Subje6t,  into  an  agreeable,  and  immediate  Point  of  View : — and, 
efpecially,  with  refpeft  to  Matters  of  Infurance,  on  Account  of  the  Quantity 
and  Variety  oit}i\em  ;  often  feeming unconnefted  with  each  other;  but  which, 
neverthelcfs,  appertain  to  the  fame  Head  or  Title. 

This  Form  is  alfo  the  more  eligible,  as  it  affords  Opportunity  for  the 
occafional  Definition,  and  Explication  of  fundry  technical  Terms,  or  par- 
ticular Words,  and  Things :  which  hardly  any  other  Mode  would  admit  of, 
fo  as  to  be  difcerned,  or  found,  without  great  Difficulty. — I  have,  therefore, 
chofen  that  Method  of  Communication,  by  which  every  one  interefted  in 
the  Subjefl  of  this  Book  may,  even  without  much  Study,  or  Application, 
fupply  himfelf  injlanth,  by  Infpedion  only,  with  that  particular  Informa- 
tion 


PRE  LI  M  I  NARY     DISCOURSE.  Ixui" 

tion  which  he  may  want,  as  from  a  conftant  livhig  Companion  and 
Remembrancer  ;  and,  to  render  That  attainable  with  Eafe,  and  little  Lofs 
of  Time,  which  could  not  otherwife  be  acquired,  during  a  whole  Life, 
by  thofe  who  are  merely  in  the  Employment,  or  Rotation  of  current 
Bufmefs. 

2.  Not  only  the  Alphabetical,  or  Di6lionary   Form  is  judged  to  be  the 
mofl  proper  for  this  Work ;  but  the  HEAD  S  or  TITLES,  fo  arranged, 

will  be  chofen  with  due  Care  and  Confideration  : and  will  alfo  be  fuffici- 

ently  numerous,  for  the  Purpofe  of  enabling  the  Reader  to  fmd  fpeedily,  and 
with  Certainty,  any  Information  and  Inftruftion  which  he  may  ftand  in  Need 
of;  as  under  each  of  thofe  Titles  will  be  inferted,  and  difpofed  in  the  mod 
convenient  Order  polfibfe,  every  Thing  which  diredly,  materially,  and 
principally  belongs  thereto ;  and  under  which  it  will  mofl  naturally,  or 
likely  be  looked  for. — And,  whatfoever  other  and  farther  Information,  or 
Matters,  relative  to  the  Subjeft  of  fuch  particular  Head  or  Title,  may  be 
requifue,  will  be  fupplied  and  readily  found  by  Means  of 

3.  R  E  F  E  R  E  NC  E  S  from  fuch  diftinft  Titles,  to  all  fuch  other  Heads-, 
or  Titles,  under  which  may  appear  whatfoever  is  even  collaterally,  indireElly, 
and  J?/?fl«i^/y  connefted  therewith. — Thefe  References  will  be  very  copious; 
and  fo  attentively  adapted,  as  to  lead  the  Reader  to  obtain  full  and 
fatisfaftory  Intelligence,  and  Inftruftion,  on  whatfoever  Matter,  Oueftiar^ 
or  Point  he  may  be  in  fearch  of. 

4.  All  thofe  Matters  and  Objefts  which  ufually,  and  at  all  Times,  are 
liable  to  prefent  themfelves,  in  the  common  Occurrences  of  INSURANCE, 
will,  befides  what  will  appear  under  this  general  Title,  in  an  efpecial  Manner 
be  fully  treated  of,  as  praftical  Points,  branched  out  under  their  particular 
and  refpe£live  Heads  ; — fuch  as,  for  Example, 

Abandonment,  Adjustment,  Bankrupt,  Barratry,  Bottomry, 
Bounty,  Commencement  (of  Voyage,  or  Rifque)  Commission,  Con- 
tribution, Cutting,  Demurrage,  Departure,  Deviation,  Dis- 
charge, Discount,  Distress,  Dock,  Document,  DoubleInsurance, 
Drawback,  Duties,  East-India  Ships,  End  (of  Voyage,  or  Rique) 
Estimate,  Event,  Evidence,  Fire,  Freight,  Goods,  Illegality, 
Insolvency,  Insufficiency  (under  which  Head  will  be  inferted  the 
remarkable  Cafe  of  the  Mills  Frigate)  Insurrection,  Interest,  In- 
terest OR  NO  Interest,  Jettison,  Landing,  Leakage,  Lighter, 

Lives, 


Ixiv  PRELIMINARY     DISCOURSE, 

Lives,  Loading  Port,  Loss,  Lost  or  not  Lost,  Lottery,  Market, 
Mutiny,  Necessity,  Notice,  Order,  Overloading,  Outfit,  Perish- 
able Commodities,  Piracy,  Premium,  Prior  Insurance,  Profit, 
Prohibited  Goods,  Proof,  Protest,  Provisions,  Quarantine, 
Register,  Regulation,  Reinsurance,  Repair,  Respondentia, 
Restraint,  Return,  Risque,  Running  foul.  Sailors'  Wages, 
Salvage,  Sea-worthy,  Ship,  Ship  or  Ships,  Shipwreck,  Short 
Interest,  Slaves,  Smuggling,  Stowage,  Stranding,  Theft,  Time, 
Total-Loss,  Touching,  Unloading,  Usage,  Valuation,  Voyage, 
Wager,  Warranty,  Wear  and  tear,  Wreck,  Written  Clause; 
and  many  others. 

And,  as  the  Muhlplicity  of  Particulars  and  Circumflances,  often  very 
complex  and  Intricate,  which  concern  AVERAGES,  and  all  partial 
Lojfes,  are  the  moft  difficult,  and  thorny,  of  any  Thing  belonging  to  Infurance  ; 
and  the  moft  apt  to  produce  Contrariety  of  Opinion,  and  Difpute ;  and,  in 
the  calculating  and  dating  of  which,  enormous  Errors,  Deceptions,  and 
Impojitions  continually  occur,  to  the  great  Prejudice  and  Wrong  of  one  Party 
or  another;  particular  Attention  will  be  given  to  infert  under  the  Titles, 
Average,  General  Average,  Particular  Average,  Petty 
Average,  Adjustment,  Cutting,  Damage,  Interest,  Market, 
Rep  air,Salv  age,  STRANDiNG,andfeveralotherHeads,immediateIy  relative 
thereto,  the  moft  needful  and  pra6lical  jRw/^i,  Methods,  and  Objervations  :^ 
alfo  ufeful  Remarks  under  the  general  Title,  Commodities,  with  refpeft  to 
their  greater  or  lefs  Rifque  of  Damage ;  as  well  as  under  the  refpeftive 
Titles  of  fome  particular  Kinds  of  Commodities : — and  efpecially  under  Title, 
Average,  will  be  found  an  approved  general,  ox  fundamental  Rule,  for 
Rating  every  partial  Lofs,  or  Average  whatfoever,  on  Goods ; — which  hath 

never  appeared  in  any  other  Book  : and  for  Want  of  a  clear  Idea  of  which, 

many  confiderable  Underwriters,  Merchants,  and  Brokers,  are  very  frequently 
engaged  in  warm  Altercation  ;  and  pay,  or  receive,  much  more  or  lefs  than 
they  ought  to  do  : — very  extraordinary  Inftances  whereof  daily  happen  ; 
and,  of  crron^OMJ  andyi^  Adjuftments,  even  to  the  Amount  of  lo,  12,  and 
fometimes  20  per  Cent,  or  more,  on  large  Policies. 

5.     As  particularly  incident  to  WAR,  or  Hostilities: — befides  what 
will  be  inferted  under  thefe  Heads  generally  ; — all  Matters  arifing  therefrom, 
and  concerning  or  relative  therto,  will  be  fully  ftated,  under  the  refpeSive 
Titles,  Cap.ture,  Contraband,  Convoy,  Cruize,  Cruizer,  Deten- 
tion, 


PRELIMINARY     DISCOURSE.  Ixv 

TiON,  Embargo,  Enemy,  Hostage,  Invasion,  Letter  of  Marque, 
Masked  Ship  or  Property,  Navy,  Neutral  Ship  or  Property, 
Privateer,  Prize,  Property,  Ransom,  Recapture,  Reprizal, 
Sea,  Seizure,  Ships  of  War,  and  fundry  others. 

The  curious  QueJIioJi,  with  Regard  to  the  Advantage,  or  Difadvantage, 
as  aifo,  as  to  the  Legality  itfelf,  even  without  parHamentary  Prohibition, 
of  infuriiig  ihc  Skips,  or  Property  of  Enemies,  in  Time  of  War,  or  Hoflilities, 
will  be  difcuffed,  under  thefe  general  Heads  : — all  the  Reafons  which  have 
been  urged  for  and  againft  it,  colle6led  and  abftratled  :  with  fome  new, 
and  interefling  Obfervations,  and  other  Particulars  of  great  Importance. 

6.  As  it  fliould  be  a  material  Part  of  the  Aim  of  all  wife  Regulations 
concerning  Infurance,  to  guard  againft,  detect,  and  punifh  DECEPTION, 
IMPOSITION,  and  FRAUD  ;— thefe,  throughout  the  whole  Work,  and 
in  each  refpeftive  Department  of  it,  will  be  the  conftant  Objects  of 
Expofition  ;  and,  in  the  various  Shapes  they  affume,  efpecially  in  Time  of 
War,  fpecifically  combated  :  all  the  C^j,  Rules,  anA  Obfervations,  feveral 
of  which  are  intirely  new,  will  have  a  Tendency  to  enable  the  Reader  the 
more  eafily  and  expertly  to  perceive,  prevent,  or  redrefs  them  : — and,  to 
this  Effeft,  befides  what  will  be  contained  under  the  general  Head  of  Fraud, 
there  will  be  fee\i  under  fundry  other  diftinft  and  feparate  Heads,  to  which 
it  refers, — fuch  as  Commission,  Concealment,  Date,  Deceit,  Devia- 
tion, Document,  Evidence,  Intelligence,  Lives,  Misrepresen- 
tation, Order,  Out-Ports,  Profit,  Proof,  Repair,  Ship  or. 
Ships,  Touching,  Valuation,  War,  and  divers  others, — various  In- 
ftances,  Methods,  Hints,  &c.  concerning  them;  and  towards  the  Deftruction, 
or  Prevention,  in  a  great  Meafure,  of  that  Hydra,  Fraud! — And,  to  this 
Effect,  alfo, 

.  7.  Under  the  Titles  A  G  E  N  T,  BROKER,  FREIGHTER, 
INSURED,  INSURER,  MARINER,  MASTER,  MATE, 
OWNER,  PILOT,  TRUSTEE,  &c.  will  be  compnfed  many  ufeful 
and  important  Matters,  Laws,  Rules,  Cafes,  &c.  touching  their  refpeftive 
Rights,  Conduti,  Duty,  and  Obligations,  in  all  Tranfaftions  and  Circum- 
flances,  bearing  Relation  to  Matters  of  Infurance,  which  have  hitherto 
occurred,  or  may  probably  arife : — not  only  with  refpeft  to  the  Heads 
referred  to  in  the  feveral  preceding  Seftions ;  but  efpecially  Account,  Bar- 

R  RATR'Y, 


Ixvi  P  RE  LI  MI  NA  RY     DISCOURSE. 

RATRY,    Damage,    Deviation,  Embezzlement,    Illegality,    Neg- 
ligence, Payment,  Policy,  Thept,    Wages,   and  fundry  others. 

8.     Concerning  POLICIES  of  Infurance;  and  the  various  Matters 
and  CircLimftances  which  peculiarly  appertain  to  them,  their  Nature,  Objeft, 

Utility,    Effecl : the    ConJlru6lion,    or    true    Import,    and    Operation   of 

their  feveral  Terms,  and  Clauses,  printed  or  written  ;  the  legal  Stamps  ; 

and  fundry  other  Particulars  requifite  to  be  known : full  Information  will 

be  given,  under  Title  Policy,  and  the  other  refpeftive  Titles,  Heads, 
and  Terms,  to  which  it  will  refer,  or  which  may  have  Affinity  therewith  ; 
interfperfed  with  fundry  Rules,  Iii/lruBions,  Cautions ;  and  Remarks,  con- 
cerning the  novel,    loofe,    vague,    and  catching    Manner  of  wording    the 

written    Clauses    on    feveral    Occafions  : the    EfFeft    of   Blanks 

frequently  left,  and  of  Alterations,  Erafures,  Interlineations,  Miftakes, 

inconfiderately,    and    otherwife,    made   in   them  ; from  which  Circum- 

flances,  much  Inconvenience,  Deception,  and  confequently  Difcontent, 
Difputes,  &c.  from  Time  to  Time,   arife. 

g.     It  is  intended  to  exhibit  a  few  fele6l  FORMS  o^ Policies,  Bottomry 
Bonds,  &c.    as  ufed  at  fome  of  the  principal  maritime  Places  of  Europe, 

and  by  public  Companies,    ox  Corporations  : not  only   as  they  are  in 

ihemfelves  curious  ;  but,  as  furnifhing  Matter  for  Speculation  and  Refledion, 

compared  with  each  other,  and  with  the  Forms  in  Ufe  in  England. 

They  will  appear  under  the  Titles,  or  Names  of  fuch  Places,  and  Com- 
panies refpeftively  ; — it  being  thought  that  this  Work,  defigned  to  convey 
the  fulled,  and  moft  general  Information  poITible,  would  be  dcfcftive 
Avuthout  them. 

lo.      Accounts    will    be   given   of  the  feveral    COMPANIES, 
CORPORATIONS,    and    S  O  C  I  E  T  I  E  S,  eftablifhed,  particularly 

in  London,  for  Infurance  ; whether  on  Ships,  Merchandife,  Goods,  Fire, 

Lives,  &c.  under  their  refpeftive  Titles: — their  Rife,  Defign,  Progrefs, 
Propofals,.  Terms,  Methods,  Advantages,  &c.  with  fome  curious,  critical, 
and  neceCTary  Remarks  thereon  : — from  all  which,  much  ufeful  Matter  jnay 
be  drawn,  for  the  Benefit  of  private    Perfons,    and  Infurance  in  general ; 

efpecialiy    under    the    Titles,    London    Assurance    Company, — 

Royal-Exchange    Assurance   Company,  —  Union,  —  Sun-Fire,— ^ 

Hand  in  Hand  Offices; — Amicable, — Equitable  Societies;  &c. 

Some 


PRELIMINARY     DISCOURSE.  Ixvii 

Some  collateral  Matters,   regarding  the  Eaft-India  Company,  and  Eajl-hidia 
Ships,  will  be  noticed  in  their  proper  Places. 

11.  Of    the  CHAMBERS  of  ASSURANCE,    in  >m;g-7i  mari- 
time Countries: their  Plan,  Methods,  Regulations,  Authority,    and  Ufe ; 

in  taking  Cognizance  of,  flating,  adjufting,  fettling,    and  determining  upon, 
all   Affairs  relative  to  Infurance  ;    and  to  all  Perfons  concerned  therein  : — 
likewife  further  Information  under  Titles,  Foreign  Adjustment,  Foreign 

Court,    Foreign    Owner,    Foreign    Ships,    &c. and,    as   fimilar 

to  the  abovenientioned  Inftitution,  a.r\d  fummary  Mode  of  Deci^on,  will  be 
inierted,  in  their  proper  Places,  fome  Account  of  the  Court  of  Policies 

OF  Insurance,    formerly  eftabliflied  in  London,    and  of  its  Decifipns  ; 

likewife  every   requifite  Inftruftion,    and  the  Rules  of  Law,    in  regard  to 
Arbitration,  Award,  &c.  with  a  particular  View  to  Infurance  Matters. 

12.  In  the  fam.e  View,  will  be   communicated — whatfoever  may  be  re- 
quifite to  be  known  concerning  our  own  MARITIME  and  other  COURTS 

of  JUDICATURE: particularly   the   Admiralty    Court,    Cinque 

Ports,  Commissioners  of  Appeals,  &c. — and  herein  will  be  ftated  and 
confidered  what  is  neceffary,  relating  to  Appeal,  Claim,  Condemnation, 
Contraband,  Droit  of  Admiralty,  Neutral  Property,  Prize, 
Reclaim,  Restitution  ;  and  other  Matters,  branched  out  under,  and 
referred  to,  their  refpeftive  Heads. 

13.  The  MARITIME   LAWS: particularly  fome  of  the  ancient 

Sea  Laws  of  Wisbuy,  Oleron, — the  Rhodian  and  Civil  Law,  &c. 
will    be    briefly   noticed,    inafmuch    as    they   immediately    concern    Affairs 

relative  to  Infurance ; and  as  being,  Jlill,    in  many  Cafes  regarded,  and 

frequently  quoted,  by  our  Courts ;  and  indeed  the  Origin  from  whence  ali 
modern  maritime  Laws,  Ordinances,  and  Regulations  have  fprung. 

14.  As  to  LAW  in  general : the  Law  of  Nations  ; — the  Laws  of 

England  ; — the  Lex  Mercatoria,  &c. — fome  very  ufeful  and  neceffary 
information,  and  Obfervations,  will  be  introduced  ;  as  well  concerning  them, 
as  with  refpeft  to  Lawyers,  Law-Suits,  Juries,  Verdicts,  &c.  relative 

efpecially  to  Matters  of  In/urance  ; and  with  which,  therefore,  it  is  very 

peedful,    on  many  Occafions,    that  all  Perfons  who  are  concerned  thereia. 
ihould  be  acquainted. 


25.     Ali; 


Ixviii  PRELIMINARY    DISCOURSE. 


J 


J- 


All  the  CASES  which  have  ever  been  ADJUDGED  in  our  Courts, 
in  Matters  of  Infurance,  which  are  to  be  found  in  the  Books,  down  to  the 
prefent  Time ;  and  fome  others,  in  which  Perfons  concerned  in  Infurance, 
and  efpecially  Infurers,  are  materially  interefted ;  will  be  feverally  arranged 
in  the  moft  convenient  Manner  pofTible,  under  the  various  and  re/pedive 
Titles,  according  to  the  Qucjlion,  Point,  or  SuhjcEl  Matter  of  each  particular 
Cafe. — This  will,  doubtlefs,  be  confidered  as  a  very  effential,  and  valuable 
Part  of  the  Work  ; — as  the  Cafes  are  very  numerous,  and  in  general  fettle  the 
Law,  with  refpeft  to  the  Matter  of  each  Cafe,  in  a  very  great  Variety  of 

Oueflions  and  Points;  fome  of  them  of  an  important  Nature. They  are 

taken,  with  great  Care,  from  all  the  numerous  Books  of  Reports,  and  other 
Lav)  Books  extant ;  where  they  lie  promifcuoufly  fcattered,  amongfl  an  Abun- 
dance of  other  intirely  foreign  and  unconnefted  Matters :  which  necefiarily 
caufes  a  great  many  of  them  to  be  not  at  all,  or  but  little  known. 

Such  of  the  Cases  as  are  on  Subjefts  of  the  moft  Importance,  will  be 
given  at  large,  as  they  ftand  in  the  Reports,  with  the  learned  Arguments  of 
Counfel :  others  abridged,  or  abftrafted ;  or  the  full  Sabjlance  of  them  only 
taken  :  but,  in  general,  what  was  delivered  by  the  Judges  is  tranfcribed  at 
full  Length  : — the  Name  of  each  Cafe,  the  Reporter,  Term,  and  Court  in  which 
it  was  tried,  will  alfo  be  regularly  quoted,  and  referred  to  : — and,  under  the 
general  Title,  Cases  adjudged,  will  be  inferted  a  complete  List  of  the 
Names  of  all  thofe  Cafes,  -wiih  References  to  each  Title,  as  the  particular  and 
diilin61:  SubjeEl  Matter,  under  which  each  Cafe  is  immediately  to  be  found. 

In  Order,  however,  that  every  Reader  may  form  a  right  Idea  of  Trials, 
and  Decisions  at  Law ;  and  how  far  they  are,  or  ought  to  be  of  Validity  and 
Authority,  as  Precedents  ;  I  have  inferted  under  this  latter  Title,  fome 
curious,  as  well  as  ufeful  Information,  and  Obfervations. 

As  it  is  a  Maxim  of  the  Law,    that  "  Ignorantia  Juris  non  cxcufat" — 

tind,  "  Every  Man  is  bound  to  take  Notice  of  the  Law," it  were  to  be 

wiflied  that  the  Laws,  and  all  the  Cafes  adjudged  in  our  Courts  (which  Adju- 
dications, w'hilll  unreverfed,  are  deemed  and  taken  as  Law)  relative  to  Trade 
and  Commerce ;  and  alfo  each  other  diftinft  Clafs ;  were  annually,  periodi-i 
cally,  or  occafionally,  colle6ied  and  publiflied,  as  they  ought  to  be,  at  the 
public  Expence,  in  as  fuitable  a  Manner  as  polhble,  for  the  due  Information 
of  all  Perfons  concerned  in  each  Branch,  or  Clafs  :  inllead  of  being  jumbled 
together,  confufcdly,  amongft  an  Immcnfity   of  all  other  Matters,  as  they 

{land 


PRELIMINARY     DISCOURSE.  Ixix 

fland  in  the  voluminous  Mafs  of  Reports,  &c. This  grand  Defect,  with 

reo-ard  to  Infarance,  will  be  fully  fupplied  and  remedied,  by  Means  of  thjs, 
and  the  next  following  Article  of  this  Work. 

16.     Divers  STATUTES,  or  Claufes  thereof,  are  indifpenfibly  requifite 
to  be  known,   by  all  Perfons  concerned  in  commercial  and  maritime  Affairs, 

and  Infurance  : But,  the  very  great  Number,  and  mixed  Nature  of  the 

Statutes,  render  feveral  Parts  of  them,  which  relate  to  particular  Branches 
of  Commerce,  or  Claffesof  Perfons,  connected  therewith,  in  general  unknown, 
As  fome  of  them,  however,  immediately,  and  directly  relate  to  Infu- 
rance; and  are  penal,  prohibitory,  &c. — of  all  fuch  Statutes,  Abstracts, 
or  Extracts,  and  fometimes  intire  Clauses,  as  Occafion  requires,  but 
flripped  of  their  Formalities  and  Tautologies,  will  be  Jelecled,  and  placed 
under  the  re/peclive  Titles  to  which  they  belong  or  relate  : — and  the  Year, 
Reign,  Chapter,  and  Sedion  of  each,  will  be  quoted ; — alfo,  under  the 
general  Title  Statute,  will  be  given  a  List,  fpecifying  in  regular  Order, 
the  Year,  Reign,  and  Chapter,  of  every  Statute  quoted  in  this  Work,  with 
References  from  each,  to  the  particular  and  refpeftive  Titles,  or  Subjeft  Matters, 

under  which  the   Claufes,  or  Extrafts,  are  immediately   to  be  found  : 

fuch  as  Admiralty-Court,  Bankrupt,  Barratry,  Bottomry, 
Colony,  Company,  Greenland  and  other  Fisheries,  Interest,  In- 
terest OR  NO  Interest,  Lives,  Mariner,  Master,  Navigation, 
Owner,  Prohibited  Goods, ^  Reinsurance,  Salvage,  Seamen, 
Wager,  Wool,  Wreck;  and  feveral  others. 

17.     The  ordinances  of  foreign  maritime  States,  with  Refpeft 

to  Infurance,    are  undoubtedly  of  confiderable  Authority  ; are  paid  great 

Regard  to,  and  frequently  quoted,  as  fuch,  by  the  Judges  themfelves,  in 
our  Courts  of  Juftice  ;  and  feveral  Decifions  there  have  been  founded  on  the 
BoBrine,  and  Reafon  of  thofe  Ordinances  ;  as  being  confonant  with  the 
Law  of  Nations,  and  containing  the  eflablifiied  Rules  of  the  Lex 
Mercatoria;  as  will  appear  by  feveral  of  the  aforementioned  adjudged 
Cafes :— and,  as  feveral  Infurances,  made  here,  are  ori  Rifques  determinable 
in  foreign  Places ;  and,  confequently,  all  Adjuftments  there,  refpe6lincr 
them,  are  regulated  by  foreign  Ordinances  ;  a  Knowledge  of  them,  and  their 
Principles,  is  therefore  very  requifite  ;  inafmuch,  alfo,  as  they  corrcfpond 
with,  elucidate,  and  illuftrate  the  Laws,  Doarines,  and  Pradice  of  Infurance 

m  England. Such  Parts,'  or  Articles  of  them,  which  however  are  many, 

concerning  divers  efTential  and  neceffary  Matters,  and  Perfons,  as  are  of 

S  this 


Ixx  PRELIMINARY    DISCOURSE. 

this  Nature ;  and  others,  which  it  would  be  for  the  public  Benefit  were  they 
introduced,  and  obferved  as  Rules,  with  us;  are  extrafted,  and  placed 
under  the  particular  Titles  to  which  they  belong ;— the  refpeaive  Ordi- 
nances and  their  Dates  are  quoted  ; — and  References  are  alfo  made,  from  a 
List  thereof,  inferted  under  the  general  Title  Ordinance,  to  all  ^uch par- 
ticular Titles. 

18.     TREATIES  of  Commerce  and  Navigation,  are  alfo  highly 
neceffary  to  be  attended  to,    on  a  Variety  of  Occafions,  by  Infurers,   and  all 

Perfons  concerned  in  Matters  relative  to  Infurance : fuch  as,  efpecially^ 

retrard  Contraband,  Detention,  Freedom  of  Navigation,  Free 
Goods,  Free  Ships,  Hostilities,  Neutral  Ships  and  Property, 
Privateer,  Seizure,  Ships  of  War,  War,  and  many  other  particulars; 
—under  all  which  Heads,  refpeftively,  will  be  placed  very  ufeful  Extracts 
from  all  thofe  Treaties  which  are,  now,  chiefly  regarded  ; — the  refpeftive 
Treaties,  and  their  Dates  quoted  ; — and  References  made  from  a  List  thereof 
under  the  Title,  Treaty,  \.o  tdich  particular  }ritdi^,  as  abovementioned. 

10.  Various  collateral,  correlative,  and  MISCELLANEOUS 
MATTERS,    will   be   occafionally,    but  briefly,    and   confiderately   intro- 

jjm-ed : which,  though  not  immediately,  or  direftly  belonging  to  Infurance ; 

or  abfolutely  neceffary  for  the  common,  praftical  Purpofes  of  Perfons  con- 
cerned therein,  or  connefted  therewith  ;  yet,  without  which,  this  Work, 
intended  to  convey  an  Acquaintance  with  every  Thing  requifite  for  forming 

the  expert  and  accompliflied  Insurer,    could   not   be   complete. Such 

Matters  chiefly  regard  the  ConJlruElion,  Built,  and  different  Kinds  of  Ships, 
or  Veflels,  and  fome  particular  naval,  and  marine  Affairs  ; — of  which,  fhort 
Defcriptions,  or  Explanations  will  be  given  ; — alfo  Definitions  of  fome 
particular  Terms,  and  Phrases;  about  which  there  occurs,  fometimes,  a 
Difference  of  Idea,  and  even  Litigations : — thinking  it  improper  that  Perfons 
fliould  be  unacquainted  with  the  Nature,  Ufe,  and  true  Meaning,  of  what  they 
are  often  very  greatly  interelled  in. 

20.  Interspersed,  throughout  the  whole  Work,  will  appear  much 
intirely  NEW  MATTER;  and  divers  Remarks,  Cases,  and  Obser- 
vations, not  in  any  other  Book  whatfoever ;  chiefly  the  Product  of  the 
Author's  own  long  and  attentive  Study,  Experience,  and  Pra6lice  ;  as  well 

as  obtained  by  the  Favour  of  fome  judicious  Friends : a  Variety  of  very 

common  Irregularities,  Errors,   and  Frauds,  will  be  clearly  pointed  out ; — 

and 


PRELIMINARY     DISCOURSE.  Ixxi 

and  abfolutely  necefTary   Regulations,  and  Remedies  of  them  fuggcfted,  with 

all  due  Caution,  and  Deference  to  the  Opinion  of  others ; Regard  being 

always  had,  however,  to  the  clear,  manifeft  Rea/on  of  the  Thing,  on  which 
all  juft  Rules,  and  Dodrines  whatfoever,  ought  to  be  grounded. 

21.     With  Refped  to  the  AUTHORITIES,  from  whence  the  Materials 

of  this  Work  are  for  the  mod  Part  drawn  : it  will  ever  be  confidered  by 

judicious  Perfons,  not  fo  much  who  fays,  writes,  or  does  any  Thing;  as 
the  Rationality,   Validity,   evident  Utility,  and  intrinfic  Merit,   of  what  is 

offered  to  their  Confideration  : nor,  if  the/e  are  wanting,  will  the  higheft 

Names  give  Authenticity  to,  or  fan6^ify  any  Publication  whatfoever,  in  the 
Eye  of  Men  of  Difcernment. 

It  is,    however,    prefumed   that   Acts    of    Parliament,    Adjudged 
Cases,  public  Ordinances  and  Treaties,  are  unqueilionable  Authorities: 

and  with  Regard  to  other  Matters  of  Law,  relating  to  Infurance  and 

maritime  Affairs  ;  not  only  all  the  moft  approved  Reports,  but  the  beft 
Digests,  Abridgements,  Commentaries,  and  other  Books,  have  been 
fearched: — On  the  Law  of  Nations,  and  Maritime   Laws,   the  moft 

eminent  Civilians  have  been  confulted  : as  likewife,  the  moft  judicious 

and  efteemed  Writers  on  Commerce,  Navigation,  and  the  LexMercatoria; 

as  well  Foreign  as  Englifti : and,  in  general,  every  Source,  from  whence 

might  be  obtained  whatever  could  render  this  Undertaking  copious,  complete, 
and  generally  ufeful,  conformable  to  the  Defign  of  it,  has  been  vihted. — 
Several  of  the  Authors  confulted  will  be  referred  to  occafionally,  where- 
ever  it  is  fuppofed  the  Reader  might  be  inclined  to  refort  to  them,  for  further 

Information  than  it  has  been  deemed  needful  to  give. And,    fuch  Parts 

of  Mr.  Magens'  ftiort  EJfay,  beforementioned,  as  are  not  become  obfolete, 
or  exploded ;  but,  which  are  confonant  to  the  prefent  fettled  Do6lrines  and 
Praftice  ;  will  be  incorporated  with  this  Work. 

As  to  ftated  Cafes  o[  Adjujlmcnt  of  Averages,  &c.  which  make  fo  large  a 
Part  of  Mr.  Magens' Book -,  befideswhati  have  already  remarked  concerning 
them  ;  and,  that  it  would,  unneceflarily,  very  much  fwell  the  Bulk  of  the 
fubfequent  Work,  were  fuch  inferted  (although  the  Author  is  in  Pofteffion 
of  many  curious,  and  approved  Adjuftments) — it  may  be  added  that,  fuch 
;  Cafes ;  however  fimilar  fome  of  them  may  be,  in  general,  to  others  which  might 
happen  ;  muft  necefiarily  differ  fo  much  in  their  particular  Circumftances,. 
Hand  Items,  that  not  any  one  can  ferve  altogether  as  a  Precedent,  or  Guide, 


m 


iNxli  PRELI  MINARY    DISCOURSE. 

in  another :— and,  therefore,  the  chief  Thing  needful,  in  Praftice,  in  order 
to  be  able  to  Jiate  or  adjuft,  with  Accuracy  and  Precifion,  any  Cafe  of 
Average,  Salvage,  &c.  whatfoever,  is,  to  become  well  acquainted  with, 
or  at  leaf!  well  grounded  in,  the  juft  Principles,  Rules,  and  Laws  of  Infu- 
rance  ;  and,  to  attain  a  Habit  of  rea/oning  rightly  thereupon : — which  a  fre- 
quent Recourfe  to  fuch  a  Work  as  is  here  defcribed  will,  naturally,  produce. 

Lastly,   An  INDEX   of  all  the  general  Heads,   or  Titles,   will  be 
annexed  to  the  Work;   for  the  flill  greater  Facility  of  turning  to  them. 

•  Having  particularly  defcribed  the  Plan  of  the  intended  Publication,  it 
is  requifite  to  fay  fomething  of 

IIL         The         EXECUTION, 


H  I  S,  it  is  confeffed,  in  Contemplation  of  an  Undertaking  fo  extenfive 
■^  in  it's  Matter,  and  fo  important  in  it's  Objeft,  as  That  which  has  juft  been 
delineated ;  as  alfo  in  Regard  of  the  feveral  Denominations  of  Perfons,  chiefly 
of  very  refpeftable  ClafTes,  for  whofe  Ufe  it  is  defigned ;  demands  fome 
adequate  Capability,  not  only  in  Point  of  fpeculative  Acquaintance,  and 
even  experimental  Intercourfe,  with  the  feveral  Branches  o^  commercial  Know- 
ledge ;  but,  alfo,  of  Penetration  to  difcern,  Judgment  to  feleft,  and  Expertnefs 
to  arrange,  methodize,  and  difplay,  all  fuch  various  Materials,  wherefoever 
difperfed  in  a  Multiplicity  of  Books,  and  attainable  in  real  Bufinefs,  fo  as  may 
be  beft  adapted  to  anfwer  the  End  propofed,  of  immediate,  full,  and 
■fatisfaElory  Information. 

The  Author  hereof,  therefore,  with  real  Difhderice,  and  Sincerity, 
declares  that,  had  there  appeared  a  Probability  that  any  other  Perfon, 
amongft  many  in  the  mercantile  World  who  may  be  better  qualified,  would 
render  to  the  Public  fo  really  necejfary,  and  ejjential  a  Service,  he  certainly 
fhould  have  had  no  Inclination  to  devote  fo  large  a  Portion  of  his  Time,  as 
hath  been  abfolutely  requifite,  in  the  Performance  of  it. 

In  the  mean  While,  he  hath  found  no  little  Encouragement,  from  the 
Confideration,  already  indicated,  that,  as  Books  concerning  Trade  and 
Commerce  are,  in  this  Country,  generally  compofed  by  literary,  fpecula- 
tive, and  reclufe  Men ;— -whofe  Studies  are  not  only  merely  theoretical,   but 

•are 


PRELIMINARY     DISCOURSE.  Ixxiii 

are  even  not  limited  to  that  Department  of  Science  chiefly  ; — They,  however 
judicious,  being  totally  unverfed  in  every  Thing  praHical  refpcfting  it, 
cannot  be  deemed  qualified  to  make  the  beft  Choice  of  whatfoever  is  more 
peculiarly  applicable  to,  and  fitted  for  the  Ufe  of  Men  aflually  employed  in, 
any  particular  Line  of  Biiftnefs ;  or  to  cull  and  difpofe,  with  equal  Cora- 
prehenfion,  Adroitnefs,  and  Propriety,  as  one  who,  from  his  earlieft  Youth, 
has  been  conftantly,  and  unremittingly  engaged,  not  only  in  an  indefatigable 
Attention  to  the  Acquifition  of  a  competent  Knowledge  of  commercial  Affairs 
in  general ;  but  alfo,  during  a  Courfe  of  many  Years,  in  the  daily  PraSice 
itfelf,  as  a  Merchant,  of  material  Branches  thereof;  as  well  as  being,  himfelf, 
for  the  greater  Part  of  that  Time,  intimately  and  experimentally  concerned, 
as  an  Infurer,  in  thofe  very  Matters  which  confl;itute  the  more  dijlind  Objefi 

of  the  propofed  Publication: which  having,  for  forae  Years  paft,  had  in 

View,  the  principal  Aim  of  the  Study,  and  Application  of  all  the  Hours 
which  his  neceffary  Avocations  would  admit  of,  as  well  as  his  perfonal 
Obfervations  and  Enquiries,  have  been  conftantly  direfted  to  that  End: — in  all 
which  no  common  AJJiduity,  and  Perfeverance  have  been  exercifed. 

It  is,  therefore,  not  without  fome  Reafon,  prefumed  that,  when  tliis 
Work,  to  the  Execution  of  which  the  Author  hath  been  alfo,  from  Time  to 
Time,  frequently  ftimulatedby  the  flattering  Opinion,  and  Partiality  of  feveral 
very  refpeftable  and  judicious  Friends,  fliall  be  viewed,  in  it's  feveral  Parts, 
with  Candour  and  Confideration,  it  may  be  found  that  he  hath  not  been 
altogether  unequal  to  the  Tafls. : — ■ — which,  however,  would  have  been  greatly 
facilitated,  had  there  ever  been  extant  any  Book  whatfoever,  on  this 
Subject,  formed,  in  any  Meafure,  upon  fo  general  and  comprehenjive  a 
Plan  ; — fince  there  is  a  very  wide  Difference  between  the  revifing,  making 
Additions  to,  and  Improvements  upon  an  old,  or  former  Publication,  and 
the  producing  an  intirely  new  Work. 

In  fliort,  in  whatfoever  elfe  he  may  have  failed  herein, — Care,  Indufry; 

RefleElion,  and  he  begs  leave  to  add,  Impartiality,  have  not  been  wantinp-; 

in  avoiding,  equally,  Redundancy  and  Paucity,  in  the  SeleHion  of  the  Mate- 
rials;  in  digefting  them,  every  where,  in  anew  zx\^ praElical  Light ;- 


and,  in  rendering  the  whole  of  that  general  Inftruftion  and  Ufe,   which  has 
been  propofed. 

Thus  far,  as  to  the  Work  iifclf : of  which  it  will,  now,  be  not  im- 
proper to  point  out,  more  precifely, 

T  IV.     The 


Ixxiv  PRELIMINARY     DISCOURSE. 


IV.         The         UTILITY. 

AS  there  is  no  Perron  whatfoever,  who  may,  in  any  Manner,  be  either 
afluallv  employed  in,  or  connefted  with,  any  Art,  Science,  or  Pro- 
felTion  ;  or  interefted  in  any  Branch  of  Commerce  ;  let  him  be  ever  fo  well 
verfed  therein ;  but  will,  neverthelefs,  on  divers  Occafions,  in  the  Courfe  of 
Pra6tice,  find  himfclf  deficient,  or  in  fome  Uncertainty,  through  the  Inat- 
tention, Want  of  Retention,  or  other  Fallibility  to  which  the  human  Mind 
is  naturallv  fubjecl ; — particularly  in  the  MulLiplicity,  and  Involution  of 
Circwnfiances  vj^vich.  relate  to  Infiarance;  and  the  hajiy,  confufed,  or  treacherous 
Manner  in  which  thofe  Affairs  are  too  often  tranfafted; — it  cannot,  therefore, 
be  deemed  otherwife  than  highly  ufeful  to  all  Perfons  in  general,  who  are 
any  Way,  whetlier  direftly  or  relatively,  concerned  with  them,  to  have 
always  at  Hand,  the  Means  of  injlantly  informing,  or  reaffuring  themfelves, 
on  every  Point ;  refpefting  which  they,  or  thofe  with  whom  they  tranfaft, 

may    be    in    any    Doubt. The    natural,    and   certain   good    Effefts    of 

fuch  a  Recourfe  muft  be,  the  Eftablifhment  of  more  coherent,  rational,  and 
fettled  Notions,  and  Principles  •,' — more  fpeedy  Concurrence  in  Opinion  ; — > 
more  accurate,  regular,  and  equitable  Methods  of  proceeding ; — and,  confe- 
quently,  more  Good-Faith,  mutual  good  Underftanding,  and  harmonious  Inter- 
courfe,  than  hitherto  prevail  in  this  very  important  Department  of  Bufinefs ; — - 

to  the  better  Support,  Eafe,  and  Extenfion  of  Commerce  in  general. And, 

herein  muft  be  evident  the  Utility,  in  particular, 

1.  To  Merchants: — who  will  be  enabled,  hereby,  to  attain  n^^if  Notions, 
and  reftify  -wrong  ones;  which  are  very  far  from  being  uncommon  with  many, 
otherwife  very  intelligent  and  refpeftable  Perfons,  amongft  them,  with 
Regard  to  the  Principles,  Rules,  &c.  by  which  the  Affairs  of  Infurance  ought 
to  be  regulated; — and  to  judge  for  them/elves,  as  well  as  to  their  own  Rights, 
and  thofe  of  their  Correfpondents,  as  the  jfii/tice  which  ought  to  be  done 
to  Underwriters. 

2.  To  Insurers: — in  a  more  peculiar,  and  efpecial  Manner;  by  ren- 
dering them  completely  verfed  in  a  Knowledge  o^ their  Prokii^iou,  and  expert 
in  the  aftual  and  immediate  Exercife  of  it ; — and  in  the  Application  of  the 
Laxos,  Principles,  Regulations,  Ufages,  &c.  to  all  the  Matters  which  concern 
it: thereby  enabling  them  to  guard  againft,   reftify,    or  deleft  Error, 

Deception, 


PRELIMINARY    DISCOURSE.  Ixxv 

Deception,  Impojition,  and  Fraud; — and,  in  general,  to  maintain  the  Honour, 
Liberality,  and  Rerpe6lability  of  their  Charatler,  and  Rank^  in  the  commer- 
cial World. 

Q.  To  Brokers: — by  an  immediate  Inflruftion,  and  Communication 
of  the  Rules,  Methods,  Impartiality,  and  Integrity,  by  which  they  ought  to 
govern  themfelves,  between  Infurers  and  Infureds,  in  all  their  Tranfa6lions, 
Reprefentations,  Adjuftments,  and  every  other  Circumflance  of  the  ConduEl, 
and  Duties  of  their  Office. 

4.  To  Owners,  Masters  of  Ships,  Freighters,  &c. — who  may, 
hereby,  become  diftinftly  and  circumftantially  acquainted  with  all  the  Matters 
which  regard  xhe.\x  Rights,  Duties,  and  Situation,  refpeftively;  inafmuch  as 
they  are  affefted  by,  or  concern  Lifurance. 

5.  To  all  Persons,  of  the  feveral  foregoing  Denominations,  resident 
in  Foreign  Maritime  Countries: — who,  as  well  as  thofe  of  our  own, 
may  be  equally  benefited  by  this  Work  ;  not  only  as  they  will  be  enabled 
to  difcover  what  concerns  their  refpe6iive  Interejis,  Rights,  and  Duties,  in 
all  Matters  touching  Infurance  made  here,  by  Orders  from  thofe  foreign 
Countries  ; — but,  as  it  contains  alfo  more  ample  Information,  on  every 
Particular,  which  any  Way  concerns  Infurance  in  general;  and  as 
univerfally  applicable  in  the  Praftice  of  it,  in  all  Countries  ;  than 
can  be  found  in  any  other  Book,  or  Nation  whatfoever : — and,  as  it  will 
alfo  be  allowed  that,  from  the  very  extenfive  Praftice  of  Infurance  in 
England,  and  the  numerous  Difciiffions,  and  legal  Decijions,  which  have, 
from  Time  to  Time,  been  made  here,  on  difputed,  and  doubtful  Points  and 
Queflions;  all  exhibited  in  the  fubfequent  Work ;  this  Science  mud  neceffarily 
be  better  underftood  in  London,  by  the  few  who  have,  profefTedly,  adapted 
their  Study  and  Attention  to  it,  than  in  any  other  Part  of  the  World. 

6.  To  Arbitrators: — who  may  be  immediately  enlightened,  and 
affifted  in  all  Matters,  howfoever  circumflanced,  which  may  be  referred  to 
them,  in  forming  clear  and  true  Ideas  thereof,  and  doing  equal  Juflice  to 
the  Parties  in  Difference  : — and,  thereby,  may  be  obviated  the  Complaints, 
and  Dijfatisf action,  which,  too  often,  and  too  juftly  arife  from  inequitable 
Awards,  in  Matters  of  Infurance  ;  being  founded  in  the  Mifreprefentation, 
and  Difingenuity  of  Parties ;  or  the  Incompetency,  Mifconception,  or  Par- 
tiality olxhs.  Referees. 

7.     To 


Ixxvi  PRELIMINARY     DISCOURSE. 

7.  To  Jurors: in  like  Manner;  who,  when  In/urance  Cauks  come 

before  them,  for  Want  of  a  better  Comprehenfion  of  the  Nature,  Fafts,  and 
Circumflances  of  them,  and  of  the  Laxos,  Principles,  Ufagcs,  &c.  by  which 
fuch  Oueftions  ought  to  be  decided;  than  can  be  coUefted  from  the  Confufion, 
Contrariety,  Perfonality,  and  often  Precipitancy,  which  occur  in  our  Courts ; 
are  too  frequently  Hable,  by  relying  on  Direction,  inftead  of  Conviction, 
to  gw'tfalfe  Judgments. 

8.  To  Lawyers,  in  general: — who  may  be  fpared  the  Trouble  of 
fearching  in  a  Multitude  of  Books,  for  Precedents,  Cafes,  Statutes,  Rules, 
Doctrines,  and  all  other  Matters  of  Law,  and  Ufage,  in  any  Wife  whatfoever 
relative  to  Injur ance: — the  whole  being  here  faithfully  colle61ed  and  rae- 
thodifed,  for  immediate  Recourfe  ;  and  the  refpeftive  Authorities  quoted ; — 
befides  much  Information  in  a  Variety  of  other  mercantile  Matters,  which 
are  occqfionally  needful  to  them. 

"  Cuilihet  in  Arte  fua  perito  cjl  crcdendum." 

9.  To  Consuls  and  Ministers,  refident  in  maritime  Places: — 
who  may,  hereby,  be  aided,  on  fundry  Occafions  of  Accidents,  or 
otherwife,  in  which  their  Advice  and  Afliftance  is  frequently  applied  for,  or 
becomes  needful  to  Mafters  of  Ships,  and  others,  in  maritime  Affairs,  con- 
nefted  with  lufarance ;  and  regulated  by  the  Laio  of  Nations,  Treaties-, 
Ordinances,  Slc. 

10.  To  the  Legislature  itfelf: — whenfoever  it  may  be  difpofed,  with 
the  Afliftance  and  Informations  of  judicious  Merchants,  Infurers,  and 
others,  to  frame  q.  complete  Ah^xdiEi,  or  Code  of  Laws,  Rules,  and  Regula- 
tions, to  be  comprifed  in  one  general  Aft  of  Parliament ;  for  an  exprefs 
Guide,  and  Government  to  all  Perfons,  in  all  Matters  relative  to  In/urance : 
— and,  efpecially,  for  the  due  Punifliment,  and  more  effeftual  Prevention 
of  all  fraudulent,  and  deceiful  PfoEiees  therein  : — to  which  EfTeft,  there  is 
hardly  any  known  Matter,  Point,  or  Circumftance,  which  will  not  be 
contained,  elucidated,  and  readily  perceived  in  this  Work,  under  its  proper 
Head  or  Title;  and  by  Means  of  the  ample  References  to  others. 

11.  In  Times  of  War  or  Hostilities: — from  the  Variety  of  im- 
portant Matters,  with  which  the  Work  abounds,  arifing  therefrom,  and 
particularly  relative  thereto,  it  cannot  but  prove  not  only  very  materially 
ufeful,  but  alfolutely  neceffary. 

12.     And 


PRE  LI  MI  NARY     DISCOURSE.  Ixxvii 

12.  And  laftly,  all  the  Youth, — and  other  Perfons,  of  the  Denominations 
already  mentioned,  hitherto  even  intirely  unacquainted  with  Infurance 
Matters,  may,  by  an  Obfervation  of  the  Order  of  them,  as  defcribed  in  the 
foregoing  Plan,  be  gradually  initiated,  and  conduced  in  the  Study  of  them, 
in  a  Method  fufficiently  regular  and  connefted,  to  become  properly,  fully, 
and  with  Facility,  inftrufted  in  the  whole  of  them  : — and  it  is  for  the  Ufe  of 
fuch  Perfons,  chiefly,  that  the  feveral  Particulars,  intimated  in  Seel,  ig,  of 
the  Plan,  are  introduced^ 


CONCLUSION. 

TTAVING,  in  the  Courfe  of  the  preceding  Pages,  reprefented  impartially, 
-*--*■  and  without  any  Exaggeration,  although  with  that  Earneftnefs  which 
hath  been  judged  to  be  requifite,  the  great  and  ruinous  Disorders  which, 
undeniably,  and  too  commonly  prevail  in  the  Practice  of  Insurance  ; 
— pointed  out  their  chief  Causes; — fuggefted,  generally.  Means  of 
Prevention,  better  Regulation,  and  Remedy,  for  the  Future ; — and, 
to  this  End,  defcribed  particularly  the  Nature,  Dejign,  and  Ufe,  of  the  in- 
tended Publication : — it  fliould  feem  fuperfluous  to  offer  any  Apology  for 
performing  That  which  the  Convenience  and  Advantage  of  the  commercial 
Public  abfolutely  require ;  Nothing  of  this  general,  comprehenfive  Kind,  and 
pra^ical  VViWiy ,  on  the  Subjeft  of  Insurance,  having  ever  before  been 

undertaken. Nor,    can    that    favourable  Countenance    and    Reception 

of  it  be  doubted,  which  it  is  not  only  for  the  public  Emolument,  but  the 
particular,  and  immediate  Inter ejl  of  every  Perfon,  for  whofe  Ufe  the  Work 
is  defigned,  to  give. 

Previously  to  it's  going  to  the  Prefs,  it  hath  been  thought  proper  to  be 
the  more  diffufe  and  circumftantial,  in  the  foregoing  Account  of  the  Plan  of 
it,  purpofely  to  give  Opportunity  to  Gentlemen  who  may,  in  the  mean  Time, 
be  difpofed,  from  Sentiments  of  Public  Spirit,  candidly  to  impart  to  the 
Author  their  Ideas,  in  what  Refpeft  any  Alteration,  or  Improvement,  may 
be  made  therein  ;  fo  as  to  render  it  more  worthy  of  Regard. — Such  Intima- 
tions, and  any  other  Afliflance,  will,  therefore,  be  received  with  Gratitude 
and  Deference  ;  and  have  all  due  Attention  paid  to  them :  although,  from 
the  Impoflibility  of  coinciding  with  a  Diverfity  of  Opinion,  one  muft,  of 
Neceffity,  finally  exercife,  in  every  fuch  Cafe,  the  beft  Judgment  that  can 
be  formed,  on  the  whole. 

U  On 


Ixxviii  PRELIMINARY     DISCOURSE. 

On  the  other  Hand,— as  Truth,  and  the  general  Good,  ought  to 
be  the  invariable  Objeas  of  every  PubHcation  whatever  ;—an^,  as  the  very 
Attempt  to  combat  the  Prevalence  of  Error  and  Injustice  is  always 
alarming,  and  ungrateful  to  the  Feelings  of  thofe  who  are  in  the  confirmed 
Habit  of  them  ; — it  is  not  improbable  that  there  may  be  some  Perfons  \vho, 
throuo-h  the  mean  and  narrow  Motives  of  Self- Inter ejl.  Prejudice,  Pique,  or 
even  from  Indifference,  may,  difmgenuoufly  or  invidioudy,  affea  to  depreciate 
what  they  have  their  Reafons  to  wifh  neither  to  underRand,  them/elves,  nor 
mio-ht  be  underlloodby  others, — though  evidently  undertaken  with  no  illauda- 
ble  Views,  nor  wkhout  fuffcient  Need,  however  imperfeftly  it  may  be  per- 
formed : — fuch  illiberal  Deportment,  therefore,  will  undoubtedly  be  feen  in  it's 
proper  Light,  by  every  impartial,  worthy,  and  experienced  Perfon :  whofe  fair 
Opinion  only  the  Author  is  ambitious  of;  and,  to  whofe  unbiafTed  Judgment 
he  cheerfully  fubmits  this  Undertaking ; — far  from  being  unapprized  of  the 
.Inaccuracy  to  which  every  human  Performance  is  liable : — confiding,  however, 
on  all  Occafions,  in 

"  Mensjibi  confcia  ReEli  ;" 

and,  beino-  well  enough  acquainted  with  Mankind,  to  be  thoroughly 
fenfible  that  Applaufe,  or  Cenfure  ;  Elevation,  or  Depreffion  of  perfonal 
Repute, — efpecially  in  the  Sphere  of  Trade  and  Bufmefs,  where  the  Fort 
of  moll  People's  Arguments  commonly  lies  in  their  own  Intere/l  or  Connexions, 
— too  often,  depends  more  on  Circumftances  merely  adventitious,  often- 
five,  and  extraneous,  than  proceeds  from  a  fuitable  Examination,  and  right 
Apprehenfion,  of  the  Propriety  or  Impropriety, — or  follows  the  real  Merit  or 
Demerit,  of  the  Conduft  of  Men's  Aftions. 

If,  however,  when  the  Author  hereof,  having  paffed  through  a  very  new 
and  arduous  Talk,  fhall  have  placed  under  the  difcerning  Eye  of  the  Public 
the  Fruit  of  his  Labour,  it  fhould  meet  with  fome  Degree  of  that  Attention 
and  Approbation,  which  his  own  Experience,  as  well  in  the  Produftion  of 
it,  as  in  it's  Application  to  real  Bufinefs,  gives  him  Reafon  to  hope  ;  he  will 
be  happy  in  the  Refleftion  that  the  Employment  of  fome  Portion  of  his 
Life  hath  been  beneficial  to  others ;  and,  therefore,  not  difcreditable 
to  himfelf. 


APPENDIX. 


PRELIMINARY     DISCOURSE.  Ixxix 


APPENDIX, 

T  N  Page  39,  is  briefly  Hated  an  Indance,  N°  3,  of  an  Infurance  on  Goods, 
"•■  in  a  French  Ship,  from  Martinico  to  Bourdeaux  : — to  which  Cafe,  it  is 
thought  proper  to  add  here  the  following  Circumftances,  relating  to  it,  which 
have  occurred  fnice  it  was  printed : — viz. — The  Agents  for  the  BritiJJi  AJfured, 
who,  as  hath  been  obferved,  was  in  London,  at  the  Time  that  Payment  of 
the  Lofs  was  demanded  from  the  Infurers,  having  brought  an  Action  againfl 
one  of  them  who  refufed  to  fettle  it ;  the  latter  caufed  the  original  Depojitions 
in  the  Admiralty  Court  to  be  examined  : — and  it  was  found  that  the  Captain 
of  the  Privateer  had  fworn,  that  "  he  made  Prize  of  the  faid  Ship,  and  her 
Cargo,  on  Account  of  illicit  Trade,  in  which  flie  was  employed,  by 
having  a  very  large  Quantity  of  Tobacco  and  Rice,  the  Produce  of  North 
America,  on  board  ;    for  which  flie  had  no  Bills  of  Lading,  or  Clearance" 

The  French  Captain,    as  alfo  the  Mate,  &c.  had  depofed  that    •'  the 

Captain  of  the  Privateer  (hewed  him  his  Commijfion,  as  beforementioned  : — 
that  he  took  at  Martinico  a  Cargo  of  Tobacco,  Rice,  Sugar,  Coffee, 
Cotton,  &c. — that  he  ligned  about  a  Dozen  Bills  of  Lading,  two  of  which 
were  false  and  colourable,  as  they  mentioned  Sugar  and  Cojfee,  inftead 
of  Tobacco  : — that  the  Reafon  they  were  made  out  fo  was,  for  Fear  of  being 
vifited  by  any  Englijh  Privateer,  who  might  feize  the  Ship  and  Goods,  on 
Account  of  the  faid  Tobacco  being  the  Produce  of  North  America : — that 
the  Tobacco  is  of  the  Produce  of  North  America  ;  as  he  alfo  believes 
the  Rice  to  be,  by  the  vast  quantities  which  are  brought,  daily, 
PROM  thence  to  Martinico: — that  he  remonjlrated,  at  Martinico,  to 
one  of  the  French  Owners  of  the  Ship  (who  was  a  Paffenger  aboard)  the 
Danger  fhe  would  run,  on  Account  of  the  Goods  which  were  American 
Produce  aboard,  in  Cafe  they  were  met  with  by  any  EngliJJi  Cruizers  : — that 
the  faid  Ov/ner  anfwered  that,  as  the  Bills  of  Lading  were  made  out  for 
Sugar,  &c.  injlead  of  Tobacco,  they  would  run  no  Rilk  : — that  at  the 
Time  the  Privateer's  Boat  was  coming  aboard,  the  Deponent  delivered  to 
the  faid  Owner  the  true  Bills  of  Lading  for  the  Tobacco  ;  Avho  gave  them  to 
the  Carpenter,  with  Orders  to  conceal  them  ;  fince  which  the  Deponent 

hath  not  feen  them." The  Defendant,  therefore,  not  being  able  to 

bring  the  faid  Captain  (who  was  gone  to  France)  nor  any  other  Witnefs, 
perfonally,  to  give  legal  Evidence,  as  above,  was  advifed  to  file  a  fhort 
Bill   in   the  Exchequer   againfl  the   real    British   Proprietor    of  the 

.Tobacco, 


ixxx  PRELIMINARY     DISCOURSE. 

Tobacco,    and  his  Agents,    the  nominal  Plaintiffs,  for  further  Difco very, 
and  a  Confefion  from  themfelves :— and,  in  their  Anfwer,  the  faid  Proprietor, 
&c.  depofed  that  "  he  went  from  England  to  Martinico ;  arrived  there  5 
Months  before,  zoos  there  at  the  Time  of  loading  the  Tobacco,  and  till  the 
Month  after  :— that  tlie  Property  of  it  was  his,  and  it  M'as  fliipped  by  his 
^^^;^^;_that  he  beheved  it  was  of  the  Growth  of  North  America  :— that 
he  was  advifed  he  was,  and  ought  to  be  confidered,  as  a  Subject  of  the 
French  King,  being  refident  at  Martinico,  and  configning  his  Goods  to 
France:— and,  therefore,  that  the  faid  Goods  were  French  Commodities  : 
—both  the  faid  Proprietor,  and  his  Agents,  admitted  that  no  Intimation  loas 
given  to  the  Infurer,  that  the  Goods  were  not  fuch,  the  Property  of  French 
Subjefts;  nor  any  Irformation,  otherwife  than  by  the  Policy  itfelf;  or  that 
they  were  of  any  other  Kind  than  are  ifaally  fhipped  from  the   French 
Weft-India  Iflands : — and,  that  the  Premium  given  him  was  no  larger  than 

uponyucA  Goods." Under  thefe  Circumftances,  the  Plaintiff  proceeded  to 

Trial;  and  produced  the  Condemnation    of  the  faid  Ship  in  the  following 
Terms ; — viz. — "  The  Judge,  by  his  Interlocutory  Decree,  condemned  the 

Ship  the  G T ,    her  Tackle,    &c.    and    the  Goods,  Wares,    and 

Merchandifes   laden   therein,    as   good   and   lawful    Prize,   and  Droits  and 

Perquifites  of  Admiralty,  taken  by ,  Commander  of  the  private 

Ship  of  War,  the ;  not  having,  at  the  Time  of  the  Capture,  a  Letter 

of  Marque   againft   the    French: — and,    at   the    further    Petition   of  , 

(Proftor  for  the  Admiralty)  decreed  a  CommifTion  of  Appraifement  and 
Sale  ;  and  direfted  the  Proceeds  of  faid  Sale  to  be  brought  into  the  Regiftry 

of  the  Court  by  the  Day  of  next  Term :  ,  (the  Proftor  for  the 

Captor)  protefted  of  a  Grievance ;    and  of  appealing : — the  Judge,    at  the 

Petition  of ,  (the  Proftor  for  the  Admiralty)  decreed  the  Sentence  not 

to  be  fufpended,  in  Cafe  fufhcient  Security  be  given  to  anfwer  the  Appeal, 
and  to  bring  the  Proceeds  of  the  Sale*  into  the  Regiftry,  to  abide  the  Event 
of  the  Appeal." 

For  the  Plaintiff,  it  was  argued  that  the  Condemnation  ought  to  be  taken 
as  of  French  Property  altogether — (though  it  was  confeffed,  and  proved  by 
the  Plaintiff's  Witneffes,  that  the  Tobacco  was  American,  known  to  be  fuch 
by  him;  and  that  the  Defendant  was  not  informed o^  it): — that  a  French 
Subject  in  Martinico  may  be  a  lawful  Ozoncr  of  American  Tobacco,  though 

*  It  may  be  proper  to  remark  that  no  Sale  lias  been  made  either  of  the  Ship  or  Cargo,  in  Confe- 
quence  of  the  Condemnation,  and  Order  to  that  Effeil ;  but  that  the  Governor  of  Gucrnfey,  to  which 
place  fhe  was  carried  by  the  Privateer  (which  belonged  thereto)  and  where  fhe  now  lies,  hath  'claimed 
the  Whole  as  Droits,  &c.  belonging  to  him ;  and  intends  to  profecute  fuch  Claim  againft  the  Admiralty : 
To  that  tlic  Interlocutory  Sentence  may,  probably,  be  annulled. 

he 


PRELIMINARY     DISCOURSE.  Ixxxi 

he  may  have  obtained  it  illicitly  from  America : — that  the  Plaintiff,  whilfl; 
rejdentthere,  -was  a.  French  Subjccl;  therefore,  it  was  French  Property:— 
and,  bv  him,  it  might  be  legally  fent  from  thence  for  France,  in  a  French 
Ship : — that  an  Englijli  Ship  could  not  legally  feize  fuch  FrencJi  Ship,  for 
having  American  Commodities  aboard  ;  except  as  a  French  Ship,  in  Time 
of  Hoflility,  and  by  Virtue  of  a  Letter  of  Marque  againit  the  French. — And 
Lord  Mansfield  concurred  in  this  Doftrine,  as  the  Law  in  this  Cafe, 

For  the  Defendant,  the  Argument  was  that,    as  to  the  Fact,   he  ^\'as 
deceived,  by  the  Concealment  of  the  Goods  being  American  Produce,  In 
great  Danger  of  Seizure   {feared  and  expected  by    the  AfTured)  efioecially 
TosACCo  (which,  befides,  v.-hen  it  is  infured,  from  the  Britifii  Weft-Indies, 
&c.  and  not  from  the  Place  of  it's  GrovAk,   is  ufually  mentioned,  and  war- 
ranted free  of  Average) : — CwzxfvJfequent  Events  and  Circumftances  could  not 
purge  that  original  Deceit : — that  he  was  left  to  tmderfland  that  the  Goods 
were  o[  French  Growth,  fuch  as  were  usually  exported  from  Mariinico,  and 
the  Property  of  French  Men ;  and  no  greater  Premium  was  given  him  than 
as  if  they    had  been  fuch : — that,  had  he  been  rightly  informed,  in  thofe 
Refpefts,  fo  as  to  exercife  his  own  Judgment  thereupon,  he  would  not  have 
underwritten  the  Policy  at  any  Rate;  or  not  have  run  the  Rids,  of  6'az.\'Jr, 
Average,   &c.  for  a  much  larger  Premiinn  ;    but  fliould  have  fappofed  fuch 
Goods,    wlieiher  they  might  prove  to  be  legally  kizshle  or  not,  at  leaft  very 
likely  to  he  feized,  and  liable  to  great  Charges  \x\  fuch  Cafe  (befides  Averao-e'^ 
if  not  eventual  Confifcation  : — that  the  PlaintilT's  plain  Intention  in  the  Con- 
cealment was,  to  avoid  giving  an  extra  Premium,  which  he  -knetl'  would  be 
demanded,  in  Proportion  to  fuch  extra  Ri/i;  or  rather,  his  juft  Apprehcn- 
fions  that,  if  he  did  not  conceal  the  Commodity,  he.  fliould  not  obtain  aTzy 
Infurance  at  all : — that,  as  to  the  fubfequcnt  Condemnation  of  the  Ship  and 
Cargo  in  the  Gro/S,*  howfoever  exprelTed  (Hoftilities  v,'ith  the' French  bein>^ 
then  commenced)  it  could  not  alter  the  Nature  of  the  prior  Co  net  atment'^  'ti  h 
affected  the  hfurer ;  and,  in  Faft,  both  the  Seizure  and  Condemnation^^zVt 
happen  in  Confcquence  {^s  \}i\e  Affured,  and  his  French  Friends,  had  fo  juftly 
feared)  of  tliofe  American  Goods  being  aboaril ;  iiot  only  without  Clearance, 
but  with  fraudulent  Bills  o^  Lading;  which  conftituted  a  juft  Cai^fe  of  Seizure  :  — 
.that  by  the  Aft  16  Geo.  3.  c.  5.  "all  Manner  of  Trade  and  Commerce  is  pro'- 

*'The  Judne  of  the  Admiraliy  fiiid,  "  There   was  no  Need  of  entering  into  Proofs  rerpefiinrr  the 
Growth  and.  i'lo.periy  ot   the  Tobacco,  in  particular;  or  oi  condemning  it  fiparaldy  •  becaufe  the 

Captor  niii-ht,  and  would  be  cqiid}ly  compenfaud,  by  Petition,  &c as  had  been  Horn-  before,  in  Cafes 

oi  American  Ships  and  Goods  being  feizcd  and. brought  in,  without  a  Comminion  for  that  Punwie 
ajid  coiulcnuied  as  Droiu  ol' Admiralty ; — ail  Prize  veiling  in  the  Cnivn,  in  the  fiili  Iuf!.;.T.-r." 

W  kihiied 


]xxxli  PRELI  MI  NAR  Y     DISCO  U  R  S  E. 

hibiledwhh  the  Colonies  of  &c." — and,  by  the  Navigation  Aft,  12  Car.  2. 
c.  18.  "no  Tobacco,  &c.  ofthe  Produft  ion  of  any  £77^//yZi  Plantation  could 
be  carried  to  any  Place  whatfoever,  other  than  to  Englijh  Plantations,  or  to 
Great-Britain,  only,  on  Forfeiture  of  the  Goods,  &c." — ^and,  confequently, 
fiich  Tobacco  miijl  have  been  contraband,  and  illegally  carried  to  and/row  a 
French  Weft-India  Ifland ;  fince  it  cannot  be  believed  that  it  had  found  it's 
Way  thither  back  again /row  Great- Britain  ;  v,-hich  only,  before  Hoftiliiies, 
could /<'^fl//y  make  it  French  Property: — that  a  Britifti  Subjecl,  though  he 
is  alfo  a  foreign  Subjeft,  as  to  the  paflive  Duties  of  Allegiance,  during  his 
temporary  Refidence  in  a  foreign  Country,  continues,  neverthelefs,  a  Britfh 
SubjeEt,*  amenable  to  the  Laws  o^ England,  and  cannot  with  Impunity  infringe 
them,  whercfoever  he  refJ.es: — that  it  is  c.lear,^  from  the  aforefaid  Depofitions, 
that  the  Laders  of  the  Tobacco,  and  the  French  Captain,  and  Owner  of 
the  Ship,  themfelves,  underflood,  and  with  good  Reafon,  that  it  was  legally 
feizable  by  the  Englifli ;  and,  therefore.  Information  ought  to  have  been  given 
to  the  Infurers  what  the  Commodity  was,  being /ubjecl  io  Dangers  which 
Goods  of  French  Growth  were  not : — that  amongft  the  Ship's  Papers  (which 
were  brought  from  the  Admiralty)  there  were  no  Bills  o^  Lading  for  Tobacco, 
correfpondent  whh  thofe  brought  by  the  Plaintiff": — that  thofe  two, /worn  to, 
by  the  Captain  himfelf,  as  " falfe  and  colourable,  exprelfing  Sugar  and 
Coffee,"  had  the  fame  Laders  Name  as  thofe  which  mentioned  Tobacco;  and 
therefore,  the  one  rdight  be  as  falfe  and  collufive,  even  with  Refpefcl  to 
Interefl  as  the  other: — and  that,  on  the  Whole,  there  was  ju(l  Reafon  to 
believe  that  this  Tobacco  had  been  illegally  obtained  at  Martinico, //-o^w 
America,  by,  or  with  the  Privity  o^,  the  British  AS^xxxed  himfelf . 

But,  very  few  of  thefe  Merits,  though  given  in  Inftruftions  to  the 
Defendant's  Counfel,  were  reprefented  to  the  Court  and  Jury  (a  very 
common,  but  very  inexcufdble  Neglect  ;■ — becaufe  a  Jury  o^  Merchants  \iou\6. 
often  form  an  Opinion  on  Circuraflances  oi  Infurance,  and  mercantile  Fads, 
■very  different  from  the  Ideas  of  Laioyers): — the  Defendant,  however,  per- 
fonally  urged  the  Point  of  the  original  Deception,  Collusion,  and  Con- 
cealment from  him  of  the  Nature  of  the  Goods ;  and  the  Deprivation 
of  his  Right  of  exercifing  his  oion  Judgment  upon  the  great  Risk  of  Seizure, 
and  it's  Confequences,  whether  legal  or  not;  evidently  expelled  by  the  Afflired, 

*  "  A  Sulijeti  is  He  that  is  under  the  Power  and  Prote£iion  of  a  Prince  ;  and,  is  either  fo  by  Birth, 
v.liich  Relation  he  can  nevnr  put  off,  no  not  bv  fwearing  Allegiance  to  another  Prince  ; — or  by  .Reafun  of 
Rf/idency  under  fiich  Prince ;  which  is  temporary  only,  and  ceafes  when  he  leaves  that  Prince's  Terri- 
tories." U''ood.'&  Inft.  Civ.  Law,  134. — 1  BlacL  Com.  370. — "  A  Subjeft  cannot  be  an  Enoiiv,  though 
in  open  War  againft  the  King,  for  he  is  to  be  uled  as  a  Traitor."—/  Rep.  24,  2j.— 3  I/i/i.  1 1. 

and 


PRELIM  FN  A  RY    DISCOURSE.  Ixxxlil 

and  his  Agents : — yet,  the  Plaintiff  was  allowed  to  make  out  his  Interejt,  without 
any  legal  Proof;  but  merely  by  identifying  the  Signatures  upon  the  Bills  of 
Lading  (which,  hov/ever,  he  could  not  fufficiently  do) — and  e/limiiting  60 
Hhds.  6  Barrels,  andi  Tierce,  of  Tobacco,  at  £"3000  fterling ;  i.e.  almoft 
£^0  per  Hhd.  as  prime  Cofl;  and  Charges  only ; — rJthough  the  Defendant's 
Counfel  did  not  produce  in  Evidence,  in  like  Manner,  either  the  aforefaid 
Depojitions,  or  the  ficlitious  Bills  of  Lading. — Verdict  for  the  Plaintiff;— 
John/on  &  Canning  v.  WeJJictt,  at  Guild-HaJl,  Sitt.  aft.  Trin.  1779. 

Remark. — If  the  Law  was  rz^A^/y  applied  to  this  Cafe,  in  Favour  of  the 
Plaintiff; — and,  if  the  Infurance  of  American  Commodities, — collufively 
traded  in,  efpecially  by  Britijh  Subjefts,  in  foreign  Ships,  through  the 
foreign  Weft-India  Iflands ;  and  particularly  thofe  oi  Enemies ;  at  t!ie  fame 
Time,  concealing  thofe  Commodities  from  the  Infurers,  and  giving  no  larger 
Premium  than  on  real  foreign  Produce, — be  legal  and  valid;  Then,  the  Pro- 
hibitory and  Navigation  Acts  are  rendered  nugatory,  and  of  very  little  Ufe, 
or  Reftraint:- — for,  BRinsri  Subjects  may  derive  the  greatefl;  Ex- 
COURAGEMENT  that  is  poffible, — even  through  that  Authority  to  v.'hich  it 
belongs  to  enforce  the  Spirit*  of  thofe  Afts, — to  emigrate  in  Shoals,  and 
become  temporary  French  Subjects,  in  French  Iflands,  for  the  Purpofe  of 
importing  thkhev American  Produce;  and  may  go  to  and  fro,  between  tlieni 
and  America,  and  become  aKotem/wrary  Rebels ;  or,  at  leaft,  correfpond,  and 
fraudulently  traffick  with  fuch,  without  Fear  of  Detection  or  Puni[i:ment:  to 
the  Promotion  and  firm  Eftablilhment  of  the  very  Trade  and  Navigation  whicli 
thofe  Afts  were  made  to  prevent; — the  great  Injury  of  their  native  Country, 
by  undermining  and  countcraEiing  it's  Laws,  and  increaling  the  contraband 
Commerce  of  Rival  Nations,  Enemies,  and  revolted  Subjefts ; — and,  confe- 
quently,  the  further  Support  of  their  Rebellion,  and  perpetual  Difunion  from 

this  Country. — A  maturer  Difcuffion  of  the  Merits   of  this  Caufc  was, 

therefore,  of  as  great  Importance  with  Regard  to  Commerce,  as  Infurance  : — 
and,  all  private  Intereft  out  of  the  Qtieftion  (as  undoubtedly  it  ouglit  to  be] 
there  can  be  but  litde  Reafon  to  doubt  that,  upon  yiicA  Difcuffion,  on  a  new 

*  "  It  is  the  Bufinefs  of  ilie  Judges  fo  to  connrue  the  Aft,  a'?  to  fuppreft  the  Mi/chiff^nd  advance 
th<i  Remedy." — i  Black.  Com.  87. — and,  "  what  is  within  the  Mi/chiif,  ihail  be  witliinihe  ^Mrnt  Remedy, 

though  it  be  out  of  the  Letter  of  the  Law." — Wood's  Inlf.  9 "  Statutes  made  againfl  Fraud  [criro, 

fradulent  Traffick']  fhall  be  liberally  and  beneficially  expounded,  h  as  \.o  ftippTp/s  it." — 1   Black.  Com. 

88. — 3  Co.  82 "  What  fhall  we  fav  then  of  a  Court  [ha  ftipports  an  AH  prohibited  by  a  Statiue,  or 

aulknri7.es  any  Tiling  contradiiiory  to  the  Will  of  tb.e  Legiflature? — What  elfe  can  v/e  jufily  fay, 
but  that  {uch  Proceedii:g,  repugnant  to  the  very  Defigrr  of  it's  Inftituiion,  is  a  dircft  Breach  of  TrtiO, 
by  afting  in  Oppofition  or  Defiance  of  the  Law?"— Ld.  Kaim'%  Prui.  of  £y.  183  and  184. — This  Re- 
mark was  made  on  Occanon  uf  tlie  Court  of  Scllion,  iu  Scoiland,  fudainin''  Aftions  for  niakiin' 
Contrafls  for  the  Importation  and  Exportation  ol prohibited  Goods,  and  the  like,  cfTcclual. 

Trial, 


Ixxxiv  PRELI  MI  NAR  Y     DISC  OU  R  S  E. 

Trial,  before  an  attentive  and  uninfluenced  Jury,  the  faid  Verdift  would  (like 
fundry  others,"  in  mndern  Infurance  Caufes,  even  of  far  lefs  Confequence)  be 
JILVERS.ED  ;  as  well  for  the  Illegality,   and  public  Mischief  of  fuch  a 
dandrjline  Traffick,  as  for  the  Deceit,  in  this  particul-ar  Cafe. 

Im  Fine, it  is  irnpouible  for  an  Infurer,  without  the  Gift  of  Divination, 

to  interrogate  concerning  Circumftances,  lurJdng  in  the  private  Knowledge 
of  the  In/ured,  which  might,  'S communicated,  'w\  the  Judgment  of  the  former 
(to  which  he  is  always  entitled)  "  vary  materially  the  Rifi,  otherwife  undcrjlood 
to  be  run  :"i— and,  therefore,  when  Good-Faith,  PLAi>f-DEALiNG,  and  a 
/■/7zr  Disclosure,  fiiall  be  no  longer  enforced,  as  formerly,  by  Courts  of 
Judicature;;]; — when,  on  the  Contrary,  Duplicity,  Collusion,  Coxceal- 
IvIENT  and  even  Smuggling,  (hall  find  a  5fln<S/on,  nn^Qv  CoIoilt  oi  Lato  •. — 
and,  if  no  fuch  METiioiiS  as  have  been  fuggefled  Pages  20  and  35,  nor  any 
other,  fliould  be  inftituted  to  prevent,  redrefi,  or  ftem  the  daily  Progrefs  of 
Jmpositiox  and  Fraud,  in  Matters  of  Infurance; — the  Condition  of  an 
Underwriter  of  the  City  of  Zonion,  fo  expofed,  and  ^o  unproteSled,  will 
become,  notwithftanciing  his  utmoil  Prudence,  Skill,  and  Precaution,  beyond 
Meafui'e  perilous,  remedilefs,  and  deplorable : — nor  lefs  precarious  and  in- 
fecure,  of  neceflary  Confequence,  mufl  be  the  Situation  of  the  real  British 
Merchant;  and,  indeed,  the  very  ExiPtence  of  British  Commerce. 


*  Since  the  preccerling  Sheets  were  printed,  a  fiew  Trial  was  granted  on  the  Queillon,  concerning  a 

"  Return  of  Premium /i^r  Convoy  ;"  in  the  Case  mentioned  in  the  Xofe,  Page  16  of  this  Difcoiule  : 

and    it  hath  been  determined, — for  the  Reafons  there  alleged,  and  upon  the  cuflomary  Acceptatioa 

of  the  Words,  "yi""  Convoy" — that  they  mean  "  Convoy  yiir  the  Voyage." Both  Trials  were'before 

■the  Earl  of  Mansfield,   at  Gui!d-Hall : — the  latter,    in   the  Silt.-  aft.   Trin.  Term,    1,779. — ^Ify-  ^ 

Roberts   v.  Ewer. So  that,    oh   this  very  fimple    Point,    wliat  was  laid  down,    as  Law   and 

-Usage,  in  Mick.  Terra,  1778,  might  hal-e  continued  to  be  an  erroneous  zwi^falfe  Guide,  had  not  the 

Defendant,  well  knowing  it  to  be  fo,  had  the  commendable  56»/Mo  caufe  it  to  be.  Riiv  tRstD,  by 

applyin"  for  a  new  Trial. The  Reader  will  naturally  confider  thcfeCONTRADiCTOKY  Decisions, 

-upon  the  y2(7«<  fimple  Queflion,  between  i\ie  Jhme  Parties,  in   \.\\e.  Jimfe  Court,    before  the  ^;«e 

Tiid<ie,  in  t\\Q  fame  Cafe, — and  at  a  very  great  Expence — as  a^  further  Proof,  amongft  divers  others, 

of  the  Truth  of  the  Obfervations  contained  in  Page  i^,,  ancL.leq. 

; . .  j  i  O  ■■ 

+  See  Pa<'es  28,  29.    . .    '  '  .        +  "  Infuranccs  being. founded  on  equitable  Principles,  v.liich  chiefly 

refult  from  the  fptcialCirciirriJldncts  of  the  Cafe  ;  and  being  Contrafls,  the  very  EJfence  of  which  confills 

in  obferving  \.\\s  pureft  Good-Faith  and  Integrity  ;  xhey  are  iiacated hv  any  the  leaft  Shadow  of  Fraud, 

or  undue  Conccabnent." — 2  Black.  Com..^6i. Lee  C.  J.  faid,  that .."  To  conceal  fuch  Circumftanccs 

as  may  make  any  Difference  in  tlie  Adventure,  ^fraudulent:" — Rooie  v.  Thurmond. 


COMPLETE      DIGEST 


O  F    T  H  E 


C})eor|>,  5.ato$.  and  J^rattite, 


O    F 


INSURANCE. 


A. 

ABANDONMENT. 

1.       A       B  A  N  D  O  N  M  E  N  T    is  an  aft  by  which  a  merchant,  wlio 

/\       hath  caufed  a  fliip,  or  goods  on  board  any  vellcl,  to  be  infured, 

J     ^    gives  notice  of  the  lofs  thereof  to  the  infurers,    and   renounces 

to  them  the  effecls  on  which  infurance  hath  been  made,  with  a  requifition  to 

pay  the  lofs. — 5.  Ricard, 

2.  Aftp-r  rn^/zc^  of  lofs,  the  infured,  either  becaufe  he  hath  infured  the 
moll  of  his  adventure,  or  in  order  to  have  the  afliflance  of  the  infurers,  when 
there  is  hope  of  recovering  the  adventure,  may  make  a  renunciation  of  the 
lading  to  the  infurers,  and  then  he  comes  in  himfelf  in  the  nature  of  an 
infurer,  for  fo  much  as  fliall  appear  he  hath  borne  of  the  adventure,  beyond 

the  value  infured ; but,  if  the  merchant  (hall  not  renounce,  yet  there  is  a 

power  given  in  the  policy  for  him  to  travel,  purfue,  and  endeavour  a  recovery, 
if  poflible,  of  the  adventure,  after  a  misfortune ;  to  which  the  aOurers  are  to 
contribute,  the  fame  being  but  a  trouble  to  give  eafe  to  the  infurers. — MolloVy. 
b.  2.  c.  7.  f.  15.  and  Loccenius,  b.  2.  c.  5.  f.  8. 

3.  Abandonment  may  be  made  where  there  is  no  probability  of  putting 
to  fea  with  the  thing  infured. — Malynes  Lex  Merc.  111,  115. 

B  ^.     Case, 


2  ABANDONMENT. 

.  4.  Case.— Thk-was-an  aftjon  ojj.^^^i^P^^c^gs  Q£_mfurauce,  dated  26tIiof 
SeptenTbcr  1756;  one  on  the  fliij)  David  and  Rebecca,  and  the  other  on  the 
goods  on  board  the  faid  fhip.  She  was  bound  from  Newfoundland  to  the 
Sireights  or  Lifbon,  and  infured  until  ihe  was  twenty -four  hours  arriv^ed  at  the 
port  of  her  difcharge ;  both  the  fliip  and  cargo  were  valued  at  the  fum  fub- 
icribed :  ai^d  it  w^agj:eed^iliat  in  ca/t^of  JqCj  it  {houldjDe  lawfulfoj  the  ipfui;ers 
tp.purCue,  bliour^  uavjd,  &c^-for  tlm  recov£j-y  of  an)'\part ;  jindif  the  {kip  failed 

with  convoy,  two  guineas  of  the  premium  to  be  returned. On  the  30th  of 

December  1756,  Ihe  was  taken  by  the  French,  and,  togcdier  with  tlie  mafler, 
mate,  and  all  the  failors,  carried  into' France  ;  and  after  fhe  had  been  in  the 
cuflodvofthc  French  eight  days,  fhe  was  retaken  by  an  Englifli  privateer,  and 
on  JjiuuAry  .^8^  175^,'^rorighi  iujo  Milford-Havfe^. — jr-it-was  proved,  that 
noti^co^  Ji$rjicrival,af^.IiHm-d-HaA.ce  wa^  giveji.tOsthQ  infur^rs,  and  that  the 
owners  intended  to  abandon  her ;  and  that  afberxoards  the  cargo,  which  con- 
lilted  of  perijiiable  goods,  was  fpoiled. Two  queftions  were  made  at  the 

bar:  ift.  Whether  this  capture  of  the  fhip  was  not  fuch  a  lofs  of  her,  or  the 
property  fo  altered,  as  to  make  the  infurers  liable  ?  and,  2dly,  Whether  the 
iirfured  hajdTiot  a  r%/j/jto  abaitdonhcx^—^ — And  after  twdj^rgum^v.s'T;:-"  lo'rd 
chie|  iullice  d^hverfa  tiie  refolution  of  .the  whole  gourt ;  vjind  faid,.  that  it  w^s 
not  necefifary  to  confine  the  cafe  to  thefe  two  fpeciiic  queftions  ;  but  that  the 
general  cjuejlion  ivas.  Whether  the  omners  had,  on  the  iSth  day  of  January 
17^7,  a  right  to  recover'tJie'  value  of~ike  'Jliip  and  cargo  from  the  infurers,  on 
abandoning  them  ? — for  that,    as  the  plaintifl["  had  then  ottered  to  abandon, 

nothing  that  hath  fmce  happened  can  dlter  his  right. That  the  firft  point 

argued  was  totally  immaterial,  that  *is',  whether  by  this  capture  the  property 
was  transferred  according  to  the  law  of  nations  ;  for  this  queftion  can  arife 
but  in  two  cafes,   ift,' Between  an  owner  and  a  neutral   perfon ;    and  2dly, 

between  an  owner  and  a  recaptor. That  the  general  rule  as  X.o  chajiging  of 

'property  was  that  of  the  civil  law,  ea  (jucc  ex  hoftibits  capimus  ftatim  noflrafiunt : 
— that  nothing  is  taken  till  the  fight  is  over,  and  the  fight  is  not  over  till  the 

pmr/uif  is  over ;  and  that  this  xvas  the  proper  definition  (f  a  capture. That 

feveral  writers  have  drawm  various  lines  by  arbitrary  rules  ;  which  ftates  from 
equitable  confiderations  have  altered;  but  the fubjecl  is  merely  arbitrary,  and 
does  not  depend  upon  reafon ;  fome  have  faid,  that  a  (hip  is  taken,  when  carried 
'infra  hojlium  prcefdia  ;  when  in  cuftody  within  their  ftrong  holds :  others,  as 
Grotius,  lib.  14,  have  made  twenty-four  hours  the  crherion  :  and  others  fay, 

that  a  fhip  is  taken  when  carried  into  the  enemy's  port. That  he  had  taken 

the  trouble  to  fpeak  to  Sir  George  Lee,  to  inform  himfelf  of  the  praftice  of  the 
court  of  admiralty  on  thefe  occafions,  and  was  informed,  that  it  was  there 
held,  that  the  property  urns  not  divtfed,  fo  as  to  change  the  owner,  till  tile 
fhip  was  condemned  and  fold  :  and  mentioned  a  cafe  determined  there  in  1695, 
where  a  fhip  was  taken  fourteen  weeks,  fold  twice,  made  feveral  voyages,  and 
yet  was  reftored  to  the  owners ;  but  whatever  favour  may  be  fhewn  as  between 
vender  and  vendee,  that  cannot  aflfeft  an  infurer ;  for  he  muft  pay  the  value 
though  the  fhip  be  retaken ;    and  whether  the  fliip  be  condemned  or  not,   he 

muft  bear  the  lofs  aftually  fuftained. That  another  queflion  was  made, 

whether 


ABANDONMENT.         3 

whether  the  infured  had  dieir  eleftion  to  abandon  ?  This  was  a  policy  on  a 
real  intereft :  die  fhip  was  difabled  to  continue  tlie  voyage  ;  the  freight  was 
loft,  and  what  could  be  faved  not  worth  the  expence  of  purfuing  it ;  and  that 
all  the  books  agreed  that  the  infured  raay,  under  fuch  circumftances,  aban- 
don to  the   infurers. That  every  argument   applicable  to  the   fhip  held 

good  as   to  the  goods :    the  cargo  was  pcrijliablc,  and  the  voyage  defeated, 

That  the  aft  of  parliament  (prize  atl   1756)  did   not  fufpend  the   total 

demand,  but  put  the  infurers  in  die  place  of  the  infured;  and  that,  in  the 
prefent  cafe,  the  lofs  was  total  at  the  time  of  capture,  and  continued  total, 
and  there  is  no  colour  to  fay,  that  the  property  was  not  diverted  ; — it  might  as 
reafonably  be  faid  that  die  property  was  not  altered,  if  a  fhip  was  funk,  and 

two  days  after  weighed  up  c^gain.- All  of  opinion  that  tJie  lofs  was  total  by 

the  capture ;  and  tha.t  t/ievfured-.  had  a  right  to  abandon. — In  K.  B.  Nov. 
1758. — Gofs  and  WtthErfSirS^-'Burr.'.GSg;  where  diis  cafe,  with  the  learned 
arguments  of  counfel  at  large^  is  reported. 

b  vd  '^ui  ■iiiiiy  -  : 

5.  I  CANNOT  find  a  fm^le  book,  ancient  or  moderin,  which  does  not  fay, 
*f  that  in  cafe  of  the  f up  pnng  taken,  the  hfiired  may  demand  as  for  a  total  Lofs, 
and  abandon."  And  what  proves  the  propofition  moft  ftrongly,  is,  that  by  the 
general  law,  he  may  abandon  in  the  cafe  merely  of  an  arrejl,  or  an  embargo, 
t)y  a  prince  not  an  enemy.  Pofitive  regulations  in  different  countries  have 
fixed  a  precife  time  before  the  infured  fhould  be  at  liberty  to  abandon  in  that 
cafe.  The  fixing  a  precife  time  proves  the  general  principle. — Ld.  MansfieUi 
in  Gofs  and  Withers. 

6.  In  queftions  upon  policies,  the  nature  of  the  contracf ,  as  an  indemnity, 
and  nothing  elfe,  is  always  liberally  confidered  ;  there  might  be  circumftances, 
under  which  a  capture  would  be  but  a  fmall  temporary  hinderance  to  the  voy- 
age, perhaps  none  at  all ;  as  if  a  fhip  was  taken,  and  in  a  day  or  two  efcaped 
entire,  and  purfued  her  voyage  :  there  are  circumftances,  under  which  it  would 
be  deemed  an  average  lofs  ;  if  a  fhip  taken  is  immediately  ranfomed  by  the 
ihafter,  and  purfues  her  voyage,  there  the  money  paid  is  an  average  lofs ;  and 
in  all  cafes  the  infured  may  chife  not  to  abandon. — Ibid, 

7.     I.\  the  fecond  part  of  the  "  Ufage  and  Cuftoms  of  the  Sea,"  (a  French 

book  tranftated  into  Englifii)  a  treatife  is  inferted  called  Guidon  ;  where,  after 

mentioning  the  right  to  abandon  upon  a  capture,  he  adds,    "  or  any  other  fuck 

di/lurbance  as  defeats  the  voyage,  or  makes  it  not  worth  while,  or  xcorth  the  freight 

to  purfiie  it."     I  know  tliat  in  late  times,  the  privilege  of  abandoning  has  been 

reftrained  for  fear  of  letting  in  frauds  ;    and  the  merchant  cannot  elect  to  term 

what,  at  the  time  zvhen  it  happened,   zuas  in  its  nature  but  an  average  lofs,  ?nto 

a  total  one,  by  abandoning ;  but  there  is  no  danger  of  fraud  in  the  prefent  cafe; 

the  lofs  was  total  at  the  time  it  happened  :    it  continued  total,  as  to  the  deftruc- 

tionofthe  voyage.     A  recovery  of  any  thing  could  be  had,  only  uj)on  paying 

more  than  half  the  value   (including  the  cofts).     What  could  be  faved  of  the 

goods,  might  not  be  wordi  tlie  freight  for  {o  much  of  the  vo}age  as  diey  had 

gone 


4  ABANDONMENT. 

gone  when  tliey  were  taken.  The  cargo,  from  its  nature,  muft  have  been  fold 
where  it  was  brought  in.  The  lofs,  as  to  the  fhip,  could  not  be  eftimated, 
nor  the  falvage  of  half  be  fixed,  by  a  better  meafure  than  a  fale  :  in  fuch  a  cafe 
there  is  no  colour  to  fay,  that  the  infured  might  not  difentangle  himfelf  from 
unprofitable  trouble  and  further  expence,  and  leave  the  infurer  to  fave  what 
he  could. — Ibid. 

8.  Case. — The  aflion  was  brought  on  a  policy  of  infurance,  fubfcribed  by 
the  defendant,  in  order  to  recover  a  total  lofs  of  the  fliip  Hope,  and  her  freight, 
valued  in  the  policy  at  2200I.  From  the  evidence  of  the  captain  it  appeared, 
that  the  (liip  failed  from  Montferrat,  with  a  cargo  of  fugars  and  cotton,  on  the 
2d  of  May  1778,  bound  for  London;  that  fhe  was  taken  by  two  American 
privateers  on  the  23d,  when  the  captain  and  all  his  crew  were  put  on  board 
one  of  the  privateers,  and  fent  to  New-England,  from  whence  they  were  fhortly 
afterwards  fent  in  a  tlag  of  truce  to  New- York,  and  arrived  there  the  23d  of 
June  : — that  finding  his  fhip  had  been  retaken  by  the  Stanley  tender,  and 
brought  into  New- York,  the  captain  immediately  made  known  his  fituation  to 
the  re-captors,  took  poffeffion  of  his  fhip  the  next  day,  claimed  the  fhip  and 
cargo  in  the  vice-admiralty  court  the  26th,  and  on  the  8th  of  July  they  were 
ordered  to  be  reflored  to  him,  on  the  payment  of  the  ufual  falvage  ;  it  further 
appeared,  that  the  captain's  intention  was,  at  firll,  to  fell  as  much  of  the  cargo 
as  was  neccffary  to  pay  the  falvage,  and  to  proceed  on  his  voyage  ;  but  as 
fugars  bore  a  very  high  price  at  New- York,  and  as  there  was  then  an  embargo 
on  the  fhipping,  he  changed  his  mind,  and  determined  on  breaking  up  the  voy- 
age there,  and  abandoning  the  fliip  and  freight  to  the  underwriters.  In  confe- 
quence  of  this  determination,  the  whole  cargo  was  fold,  but  not  meeting  w'ith  a 
purchafer  for  the  fliip,  he  ran  her  up  into  a  creek,  where  he  left  her.  In  order 
to  juflify  his  conduft,  the  captain  urged  many  impediments  to  his  proceeding, 
bcfides  the  embargo  ;  fuch  as  the  bad  flate  of  his  fhip,  the  utter  impofhbility 
of  getting  warehoufes  to  put  his  cargo  in,  whilll  his  fhip  was  repairing  ;  and 
the  very  great  difficulty  of  procuring  failors  : — it  appeared,  however,  as  well 
on  the  captain's  crofs  examination,  as  from  the  defendant's  witneffes,  that  30I. 
or  40I.  would  have  completely  fitted  his  fliip  for  fea,.  as  fhe  wanted  only  a  little 
calking;  that  for  40I.  or  50I.  more,  he  might  have  got  prize  fhips  to  anfwer 
every  purpofe  of  warehoufes  ;  as  to  failors,  the  crew  which  he  had  brought  with 
him  from  New-England,  were  flill  on  board,  and  willing  to  proceed  ;  but  that 
as  his  determination  to  break  up  the  voyage  had  rendered  them  of  no  further 
fervice,  he  paid  them  their  wages,  and  difcharged  them.  The  counfel  for  the 
underwriters  contended,  that  under  thefe  circumflances,  the  captain,  as  an 
honefl  man,  ought  to  have  proceeded  on  the  voyage,  and  that  his  conduct,  in 
turning  that  into  a  toial  lofs,  which,  in  its  nature,  was  but  a  partial  one,  and  that 
too  in  a  very  fmall  degree,  was  extremely  reprehenfible,  and  a  fraud  upon  the 
underwriters.  Notwithflanding  this,  his  lordfliip  was  of  opinion,  that  the 
embargo  (which  fcemed  to  be  the  only  difficulty  remaining)  being  one  of  the 
accidents  infured  againft  by  the  policy,  was,  in  itfelf,  a  fufficicnt  caufe  for  aban- 
doning ;  and  that  the  infured  is  not  bound,  in  any  cafe,  to  wait  the  iflue  of  an 

embargo. 


ABANDONMENT.         5 

embargo,  which  being  of  an  uncertain  duration,  his  lordPnip  obferved,  may 
fruftrate  die  whole  view  and  obje6l  of  a  voyage.  His  lordfiiip,  widiout  lofmg 
lime  in  recapitulating  the  evidence,  which  would  only  have  embarrafled  die 
jury,  left  it  to  them  to  confider  of  his  opinion,  and  they  accordingly  found  a 
verdift  for  the  plaintiff'. — Mills  v.  Hayley,  before  Lord  Mansfield,  at  Guildhall, 

]5th  of  July   1779. 1  fliall   forbear  making  any  obfervations  on   this 

verdicl,  only  recommending  to  underwriters  to  confider  well  their  fitu^ition 
on  fimilar  occafions.  General  rules  cannot  always  be  applied,  with  juftice, 
to  particular  cafes. 

C).  When  a  fliip  that  is  aiTured,  is  rendered  innavigable,  or  that  fliips  or 
goods  infuredarc  plundered  or  taken  by  an  enemy,  or  are  otherwife  abfolutely 
fpoilcd  or  loft,  without  any  hopes  of  recovery ;  it  is  then  allowed  to  the 
aftured,  to  abandon  fuch  fliips  and  goods  to  the  ufe  of  the  affurers ;  which  being 
•done  in  due  form,  three  months  from  the  intimation  thereof'  fiiall  be  granted 
to  the  affurers,  for  furnifhing  the  payment  of  the  fums  by  them  infured. — • 
Ordin.  of  Middleb. 

10.  No  ceffion  or  abandon  fhall  be  made,  except  in  cafe  o^  capture,  flip- 
zoreck,  Jlranding,  detention  by  princes,  or  the  entire  lofs  of  the  goods  infured. 
All  other  damages  fhall  be  reputed  to  be  average,  which  fhall  be  fettled  be- 
tween the  infurers  and  infured,  according  to  their  feveral  concerns. — Ordin. 
of  France. 

11.  No  ceffion  or  abandon  fhall  be  made  of  a  part  of  any  concern  or 
intereft,  and  the  remainder  kept. — dhid, 

12.  On  the  detention  by  princes,  the  cefiTion  or  abandon  fhall  not  be  made 
before  fix  months,  if  it  happens  in  Europe  or  in  Barbary.  If  in  a  more  diftant 
country,  in  a  year ;  both  to  commence  from  the  day  of  the  notifying  this 
jdetention  to  the  infurers. — Ibid. 

13.  The  infured  fliall  be  obliged  to  ufe  their  utmoft  diligence  for  the 
clearing  or  taking  off  the  detention. — Ihid^ 

14.  If  a  fhip  be  ftopt  by  our  orders  in  any  of  the  ports  of  our  kingdom 
before  the  voyage  be  begun,  the  infured  fliall  not,  on  account  of  this  deten- 
tion, abandon  or  cede  their  effefts  to  the  infurers. — dbid. 

15.  The  fhip  or  goods  infured  being  entirely  loft,  without  any  hopes  of 
recovering  them,  or  the  fhip  proving  unfit  for  further  fervice,  and  jjroper 
notice  having  been  given  of  this  to  the  infuner,  the  perfon  infured  is  authorized 
to  give  up  the  faid  fhip  and  goods,  and  to  abandon  it,  or  deliver  it  up  en- 
tirely to  the  difpofal  of  the  infurer  ;  who,  within  four  weeks  after  notice  of 
•the  lofs,  in  cafe  no  other  term  be  ftipulated  in  the  policy,  is  to  make  good  the 
fum  infured. — Ordin.  of  Konigfb. 

C  16.    But 


€  ABANDONMENT. 

i5.  Bur  when  the  Hiip  or  goods  are  only  damaged,  fo  that  the  fiiip  can  be 
ao-ain  rendered  {it  for  fta  -svithin  fr:  months  in  the  Bakick,  and  within  nine  or 
twelve  in  other  places,  according  to  their  diftance,  and  the  goods  (in  cafe, 
according  to  the  20th  article,  it  is  not  found  more  advifablc  to  take  them  out 
at  the  place  where  they  received  the  damage)  can  wholly  or  in  part  be 
forwarded  to  the  port  to  which  they  were  configned ;  here  no  abandon  or 
celfion  is  allowed,  but  the  perfon  inlured  is  to  account  widi  the  infurcr  for  all 
damages  that  can  be  proved  ;  and  the  latter,  unleis  fuch  damages  happen  to 
be  made  tjood  by  average-contribution,  {hall  difcharge  the  fame  within  four 
weeks,  according  to  the  proportion  of  the  fum  infured  ;  but  in  cafe,  within 
the  {'aid  interval,  the  fhip  is  not  to  be  repaired,  nor  the  goods  to  be  fold  where 
damaged,  or  be  carried  to  the  port  to  which  they  were  configned,  the  party 
inlured  may  relinquilh  the  fame,  and  demand  payment. — Ibid. 

17.  Although  neither  the  whole  flilp  nor  cargo  be  infured,  but  only  a 
part,  yet  in  cafe  of  lofs  or  misfortune  710  partial  cejjion  {hall  be  valid  ;  but  the 
narty  infured  muft  either  entirely  relinquilh  the  cargo  thus  infured  in  part,  or 
keep  it  wholly  to  himfelf,  the  infurer  making  good  fuch  damages  onl)'-  as 
•can  be  proved. — Ibid. 

18.  It  fliall  not  be  lawful  to  relinquifii  or  abandon  an  infured  fhip  or 
goods  whilfl  the  whole  or  a  part  of  it  can  be  faved,  reclaimed,  or  releafed  ; 
but  the  infured  is  obliged,  at  the  rifque  and  charge  of  the  infurer,  to  ufe  all 
polfible  endeavours  to  fave  (liip  and  goods,  and  to  take  care  of  and  promote 
both  the  prefervation  of  the  latter,  and  the  intereft  of  the  infurer. — Ordin. 
of  Stocklu 

ig.     No  abandoning  can  be  made,  but  in  cafe  o^ capture,  Jliipxoreck,  bulging^ 

J}ra.nding,  embargo  of  princes,    or   an  entire  lofs  of  the  thing  infured  ;    any 

other  damages  happening  fliall  only  be  reckoned  as  an  average :    the  which 

fliall   be    regulated  among  the    aUurers,   proportioning  it  according  to  the 

interell  they  fliall  have  in  it. — Ordin.  of  Bilb. 

20.  When  a  celfion  or  abandoning  is  intended  to  be  made,  by  reafon  of 
a  prince's  detention  ;  it  cannot  be  done  till  after  fix  months,  reckoned  from 
the  day  on  which  the  embargo  or  detention  was  notified  to  the  aflurers,  this 
being  done  in  any  ports  of  Europe  ;  and  if  it  fhould  be  in  thofe  of  America, 
or  others  equally  remote,  in  a  year,  to  be  reckoned  as  before  exprefled  :  but 
if  the  afiured  fliould  have  advice  by  a  juftifiable  inftrument,  that  the  fup  was 
found  unable  to  proceed,  or  the  goods  mojlly  damaged,  he  may  in  this-  eafe 
make  the  faid  ceflion  immediately,  without  waiting  the  tenn  appointed. — Ibid. 

N.  B.     In  England  no  time  is  limited  for  making  an  abandonment. 

21.  In  cafe  o^  fnipwreck  or  Jiranding,  the  affured  may  labour  for  the 
recovery  'of  tire  effcds,  without  prejudice  to  the  abandonment  or  re-imburfe- 
mcnt<jf  his  cliarges. — Ordin.  of  France. 

22.      AnO 


.ABATEMENT.  7 

22.  And  he  ought  to  do  fo  to  the  utmofl  of  his  power,  efpecially  if  he  is 
aboard,  or  be  mafler  of  the  fliip  ;  for  inactivity  in  fuch  a  cafe  would  be 
fraudulent ; — and  the  earlieft  notice  poffible  ought  to  be  given  to  the  infurcrs. 
—All  that  he  doth  for  the  recovery  of  (hip  and  goods,  is  deemed  to  be  done 
in  their  name  and  for  their  account ;  yet  the  iufured's  reimburfement  of 
charges  ought  to  be  limited  to  the  value  of  the  effetls  recovered,  unlefs  the 
infurers  fhould  have  given  him  a  fpecial  authority. — 2  Valin's  Comm.  99. — ■ 
The  infurers  may  alfo  take  fuch  meafures  for  recovery,    as  to  them  may  feem 

good. — Ibid.  133. The  hope  of  reftitution,  even  in  the  cafe  of  an  unjud 

capture,  is  not  a  reafon  to  exclude,  or  retard  an  abandonment. — Ilnd.  100. 

Although  the  fliip  may  be  entirely  wrecked,  yet  if  the  goods  be  faved  with 
little  damage,  they  cannot  be  abandoned  to  the  infurers  ;  they  have  only  to 
pay  the  average,  if  they  offer  to  convey  them  fpeedily  to  the  place  of  defli- 
nation.  The  like  ought  to  be  underftood  with  regard  to  the  fliip,  if  there  be 
means  of  getting  her  off,  and  of  putting  her  in  a  condition  to  navigate,  by  a 
repair: — otherwife,  if  uo  materials,  or  workmen,  can  be  obtained. — Ibid.  100, 

102. The  Jtrandiag  ought  to  be  complete  to  authorize  an  abandonment, 

Ibid.  102  : for  the  infurer  is  not  (as  is  often  alleged)    in  the  place  of  the 

infured ;  he  is  only  guarantee  to  him  for  the  daviage  which  may  happen  to  the 

thing  infured ;  Ibid.  104. Abandonmient  is  in  favour  of  the  aflured,  he  may 

therefore  chv.fc  to  make  it,  or  not. — Ibid.  106. By  a  regular  and  authorized 

abandonment,  the  effecls  infured  became  the  property  of  the  infurers  ;  and 
therefore  the  abandonment  ought  to  be  pure,   fimple,   and  unconditional. — 

Ibid.  143. If  there  be  two  policies  on  different  effefts,  thofe  of  the  one  may 

be  abandoned,   and  thofe  of  the  other  retained. — Ibid.  108. —The  alfured 

may  limit  the  abandonment  to  the  proportion  of  what  may  have  been  infured, 
by  referving  to  himfelf  the  right  of  participating  with  the  infurers  in  the 
recovery  which  fliall  be  n\ade,  for  the  furplus  uninfurcd. — Ibid.  1 12,  143. 

23.  When--  the  -damage  exceeds  an  half  of  the  value  of  the  goods,  an 
abandonment  ought  to  be  admitted ;  for  there  are  damages  which  increale 
■daily. — Guidon,  c.  7,  art.  1. 

24.  For  more  information  on  this  head,  {cc  Average,  Capture,  Detention, 
Embargo,  Free  of  Average,  Fr-eight,  NuLicc,  Recapture,  Seizure,  Shipwreck, 
Stranding,  Total  Lofs. 

ABATEMENT. 

1.  A  B  ATE  ME  NTS  for  prompt  payment  or  othenvife,  from  the  original 
■^T^  coft  of  goods  as  charged  in  bills  of  parcels  and  invoices;  as  alfo 
allowances,  difcounts,  drawback,  &c.  at  the  Cuftom-Houfe  ;  are  often  very 
confiderable,  and  ought  to  be  enquired  into,  and  dedu6tions  made  accord- 
ingly in  calculating  the  true  value  of  the  intereft  infured,  and  in  dating  an 
average  or  lofs  ;    which  otherwife  may  on  fome  occafioiis   be  adjuded  very 

crroneoufly^ See  Average,  Lofs, 

ACCIDENT. 


8  ADJUSTMENT. 


'■! 


ACCIDENT. 

NSURERS  are  refponfible  only  for  fuch  damages  as  happen  through 
cafual,  or  unavoidable  accidents  (cas  fortuit,  ou  Jorce)  ;  or  from 
voluntary  afts,  which  have  a  juft  and  reafonable  caufe,  fuch  as  to  avoid  greater 
nnd  more  imminent  danger; — and  in  general  for  all  accidents  howfoever 
extraordinary,  if  there  be  no  reftriclion  by  an  exprefs  claufe  : —  but  an 
accident  is  not  that  Avhich  happens  through  the  defeEls  or  perifliable  nature 
of  the  thing  infured,  or  through  the  acl  or  fault  of  the  proprietor,  freighter, 
or  m.aller. — 2  Valins  Comm.  12,  14,  74,  79. 

2.  See  Anchor,  Cable,  Capture,  Concealment,  Condemnation,  Damage, 
Deviation,  Embezzlement,  Fire,  Freighter,  In/iifficiency,  Infurance,  Injured, 
Leakage,  Majler,  Negligence,  Notice,  Owner,  Pcrjjhable  Comviodities,  Pro- 
hibited Goods,  Rifque,  Stowage,  Theft,  Wear  and  Tear, 

A      C     C     O     U     N     T. 

See  Broker,  Trujl  and  Triijiee. 
ACTION, 

See  Prelim.  Difc.  42.   Adjnjlment,  Damage,  Infurer,  Proof. 

ACT         SHIP. 

See   MaJlcr,  Navigation. 

ADJUSTMENT. 

1.  /^  ASE. — This  aftion  was  brought  by  the  plaintiff  againft  the  defendant, 
^^  on  a  policy  of  infurance  which  the  latter  underwrote  in  November 
1743,  on  the  fhip  George  and  Henry,  captain  Bowlar,  at  and  from  Jamaica  to 
London,  interejl  or  no  inter efl,f-ee  of  average,  and  without  benefit  offalvagc  to 
the  infurers  : — and  the  faid  fhip  was  zoarranted  to  fail  from  Jamaica  with  the 

fleet  that  came  out  under  convoy  of  the  Ludloxo-Cafile  man  of  war. The  faid 

(hip  did  fail  accordingly  with  the  fleet  under  the  aforefaid  convoy ;  but  in  a 
great  llorm  that  happened  fome  time  after  their  failing,  wherein  many  fliips 
were  lofl:,  the  George  and  Henry  received  fo  much  damage  as  obliged  her  to 
bear  away  for  Charles-Town  in  South-Carolina,  where  flie  put  in,  and  upon 
examination  was  found  quite  unfit  to  put  to  fea  again  ;  whereupon  her  cargo 
was  taken  out  and  loaded  aboard  other  fnips  for  London,  and  (lie  condemned 
and  broke  up. In  confcquence  of  which,  the  plaintiff  demanded  his  infu- 
rance, and  all  the  underwriters  being  fatisfied  of  the  truth  of  the  afore- 
mentioned faft,  paid  tlieir  lofs,  except  the  defendant,  who  went  fo  far  as  to 

fetde 


II 


ADMIRALTY   and   ADMIRALTY- COURT.  9 

fettle  it,  and,  according  to  cuRom,  figned  the  policy  in  the  following 
words  and  figures : — Adjujled  the  IqJs  on  this  policy  at  ninety-eight  pounds  per 
cent,   xohich  I  do  agree  to  pay  one  month  after  date,    London  ^th  July,  ij/^^. 

Henry  Gouldney. When  this  note  became  due,   he  thought  himfelf  no  way 

bound  by  it,  but  infifted  on  fuller  proof;  particularly  of  the  Ihip's  failing  under 
convoy,  as  warranted,  and  of  her  condemnation  at  Carolina  ;  but  it  having 
been  always  the  cuftom,  that  after  fuch  adjuflments  as  above,  with  promife  of 
payment  at  a  certain  day,  are  made  between  the  infured  and  infurer,  no 
further   evidence    is   ever  required,    but   the  lofs  conftantly   paid  ;    it   was 

upon  this  account  that  a  verdift  was  found  for  the  plaintiff. And  the  chief 

juftice  confidering  it  as  a  note  of  hand,  declared  that  the  plaintiff  had  no 
occafion  to  enter  into  the  j!!'?-oo/' of  the  lofs. — Lex  Merc.  Red.  281,  at  Guild- 
hall, Mich.  1745.     Hog  v.  Gouldney. 

2.  Remark. — I  apprehend  that  if  it  were  a  fettled  rule  in  our  courts,  not 
•to  enter  into  proofs  after  an  adjuflment  and  before  payment,  on  a  policy,  there 
would,  in  divers  inflances,  be  a  great  failure  of  juftice,  and  a  countenance  of 
fraud ;  becaufe  it  doth,  and  may  often  happen,  that  informations  are  received, 
and  difcoveries  of  deception  and  impofition  are  made,  by  infurers,  after  an 
adjuftment  of  a  lofs  or  average,  which  ought  to  free  them  from  payment  as 
much  as  if  they  had  not  figned  fuch  adjuftment :  and,  in  faft,  I  have  known 
feveral  cafes  tried  of  late  years,  where  the  courts  have  been  more  liberal,  and 
no  regard  was  had  to  adjuftments  aftually  figned,  unlefs  due  proof  were  made, 
at  the  trial,  of  the  reality  of  the  lofs,  and  fairnefs  of  the  demand. — If  even 
aher  payment,  made  through  miftake,  deceit,  &c.  the  law  gives  redrefs  and  a 
recovery  of  the  money,  it  would  be  furely  unjuft  to  enforce  payment  on  an 
adjuftment  obtained  by  error,  or  fraud.      (See  Payment). 

3.  An  underwriter  cannot  be  held  to  bail  on  an  aElion  upon  a  policy  of 
infurance,  unlefs  he  has  figned  an  adjuftment,  or  promife  to  pay  the  lofs, 
average,  &c.  thereon,  becaufe  it  is  not  a  certain  debt  'till  then ;  and  if  a  bail- 
able aftion  ftiould  be  brought  againft  him,  he  will,  on  motion  before  a  judge, 
be  difcharged  on  common  bail. 

4.  Rules  and  principles  of  adjuftment,  adapted  to  all  cafes,  will  be  found 
under  the  various  titles  refpeftively  throughout  this  work. — See  Prelim.  Difc. 
59,  71.  Average,  Broker,  Corn,  Foreign  Adjiflment,  Lofs,  Market,  Proof, 
Ranfom,  Recapture,  Regulation,  Return,  Salvage,  Voyage,  and  paffim. 


ADMIRALTY   and   ADMIRALTY- COURT. 

1.  ^  I  ^HESE  courts  have  jurifdiftion   and  power  to  try  and  determine  all 

■*■     maritime  caufes,    or  fuch  injuries,    which,  though  they  are  in  their 

nature  of  common  law  cognizance,  yet  being  committed  on  the  high  feas,  out 

of  the  reach  of  our  ordinary  courts  of  juftice,  are  therefore  to  be  remedied  in 

D  a  peculiar 


lo  ADMIRALTY   and   ADMIRALTY -COURT. 

a  peculiar  court  of  their  own.  All  admiralty  caufes  muft  be  therefore  caufes 
arifing  wholly  upon  the  fea,  and  not  wiilun  the  precinfts  of  any  country 
(Co.  Litt.  260.  Hob.  79).  For  the  ftatute  13  Ric.  2.  c.  5.  direas  that  the 
admiral  and  his  deputy  (liall  not  meddle  with  any  thing,  but  only  things  done 
upon  the  fca  •,  and  the  flatute  15  Ric.  2.  c  3.  declares  that  the  court  of  the 
admiral  hath  no  manner  of  cognizance  of  any  contratl,  or  of  any  other  thing, 
done  within  the  bodv  of  any  country,  either  by  land  or  by  water  ;  nor  of  any 
wreck  o!"  the  fea  :  for  that  mufl  be  cad  on  land  before  it  becomes  a  wreck. 
But  it  is  otherwife  of  things  Jlotfani,  jctfam.,  and  ligan  ;  for  over  them  the 
admiral  hath  jurifdiftion,  as  they  are  in  and  upon  the  fea  (5  Rep.  loS).  If 
part  of  anv  contracl,  or  other  caufe  of  aflion,  doth  arife  upon  the  fea,  and 
part  upon  the  land,  the  common  law  excludes  the  admiralty-court  from  its 
jurifdiction  ;  for,  part  belonging  properly  to  one  cognizance,  and  part  to 
another,  the  common  or  general  law  takes  place  of  the  particular  (Co.  Litt. 
'i6\).  Therefore,  though  pure  maritime  acquifitions,  which  are  earned  and 
become  due  on  the  high  feas,  as  feamen's  Avages,  are  one  proper  objeft  of  the 
admiralty  jurifdiclion,  even  though  the  contraft  for  them  be  made  upon  land 
(1  Ventr.  i.{6) ;  yet,  in  general,  if  there  be  a  contraft  made  in  England,  and 
to  be  executed  upon  the  feas,  as  a  charter-party  or  covenant  that  a  fliip  fl^iall 
fail  to  Jamaica,  or  fliall  be  in  fuch  a  latitude  by  fuch  a  day  ;  or  a  contraft 
made  upon  the  fea  to  be  performed  in  England,  as  a  bond  made  on  fliip  board 
to  pay  money  in  London  or  the  like  ;  thefe  kind  of  mixed  contrafts  belong 
not  to  the  admiralty  jurifdiftion,  but  to  the  courts  of  common  law  (Hob.  12- 
Hal.  Hid.  C.  L.  35).  And  indeed  it  hath  been  further  holden,  that  the 
admi;ait\-court  cannot  hold  plea  of  any  contraft  under  feal  (Hob.  212). — 
3  Black.  Com.  106. 

2.  The  proceedings  of  the  courts  of  admiralty  bear  much  refemblance  to 
thofe  of  the  civil  lazo,  but  are  not  entirely  founded  thereon ;  and  they  likewife 
adopt  and  make  ufe  of  other  laws,  as  occafion  requires  ;  fuch  as  the  Rhodian 
Lizv,  and  the  lav/s  o{  Qleron  (Hale  Hift.  C.  L.  36.  Co.  Litt.  11).  For  the  law 
of  England,  as  has  frequently  been  obferved,  doth  not  acknowledge  or  pay 
any  deference  to  the  civil  law,  confidered  as  fuch  ;  but  merely  permits  its  ufe 
in  luch  cafes  where  it  judged  its  determinations  equitable,  and  therefore  blends 
it,  in  the  prefent  inflance,  with  other  marine  laws :  the  whole  being  correfted, 
altered,  and  amended,  by  afts  of  parliament  and  common  ufage  ;  fo  that  out 
of  th.is  compofition,  a  body  of  jurifprudence  is  extrafted,  which  owes  its 
authority  only  to  its  reception  here  by  confent  of  the  crown  and  people. 
The  firil  procefs  in  thefe  courts  is  frequently  by  arreft  of  the  defendant's 
perfon  (Clerke  prax.  cur.  adm.  f.  13)  ;  and  they  alfo  take  recognizances  or 
llipulation  of  certain  fxdejufTors  in  the  nature  of  bail  [Ibid.  f.  11.  1  Roll.  Abr. 
531.  Raym.  78.  Lord  Raym.  1286);  and  in  cafe  of  default  may  imprifon 
both  them  and  their  principal  (1  Roll.  Abr.  531.  Godb.  193,  260).  They 
may  alfo  fine  and  imprifon  for  a  contempt  in  the  face  of  the  court  (1  Ventr.  1). 
And  all  this  is  fupported  by  immemorial  ufage,  grounded  on  the  neceflity  of 
fupporting  a  jurifdiftion  fo  exteniive  (1  Keb.  552) ;    though  oppofite  to  the 

ufual 


AGREEMENT. 


11 


ufual  do6lrines  of  the  common  law  :  thefe  being  no  courts  of  record,  becaufe 
in  general  their  procefs  is  much  conformed  to  that  of  the  civil  law  (Bro.  Abr. 
eno)',  177). — Il'td.  108. 

3.     See  Appeal,  Cinque-Ports,  Civil  Late,  Condemnation,    Foreign  Court, 
Hypothecation,  Law  of  Nations,  Maritime  Court,  Prize,  Sea, 


AFFIDAVIT. 

See  Damage,   Document,   Fire,  Proof,  Protefl. 

AFRICA. 

a.  O  H I P S  and  merchandizes  from  England  to  the  coaft  of  Africa,  and  at 
^  and  from  thence  to  our  colonies  in  the  Weft-Indies,  &c.  are  ufually 
infured  with  the  following  claufe  in  the  policy,  viz.  "  free  from  lofs  or 
average,  by  tra:ding  in  boats ;  and  alfo  from  average  occafioned  by  infur^ 
rediori  of  flaves,  if  under  10  per  cent. :" — however,  we  fometimes  fee  variations 
of  this  claufe. — The  average  arifing  from  infurreftion  is  underftood  to  mean 
general  average,  and  to  be  borne  by  the  value  of  ftiip  and  cargo,  &c.  not  by 
that  of  the  flaves  only,  as  a  particular  average  thereon  ;  becaufe  the  lofs  or 
damage  (whether  to  fliip,  or  cargo,  or  both)  which  happens  by  means  of  an 
infurrettion,  and  the  endeavours  ufed  in  quelling  the  fame,  arifes  from  the 
whole  interefts,  together  with  the  lives  of  the  crew,  being  in  danger,  and  in 
contemplation  to  be  preferved,  in  fuch  manner  as  the  emergency  may  admit  of. 

2.  It  hath  been  adjudged  that  on  voyages  to  the  coafl  of  Africa,  to  the 
river  MiflTiflippi,  and  fuch  other  places  where  the  fliips  go  to  trade  and 
difpofe  of  their  cargoes  by  barter  and  the  like,  and  not  to  land  and  deliver 
tliem  to  confignees  or  faftors,  the  rifque  on  the  goods  outward  ends  upon 

breaking  bulk. 

3.  See  Commodity,  End  of  Voyage  or  Rifque,  NexifouJidland. 

AGENT. 

See  Prelim.  Difc.  48,  8g.  Broker,  Declaration,  Factor,  Order,  Triiftand  Tnijlce. 

AGREEMENT. 

See  Arbitr(ition,  ContraB,  Policy,  Society,   Written  Claufe. 

A  G  R  O  U  x\  D. 


12  ALIEN. 

AGROUND. 

1.     A   GROUND,  is  the  fituation  of  a  fliip  whofe  bottom,  or  any  part  of 
-^^  it,   hangs   or  refts  upon  the  ground,  fo  as  to  render  her  immoveable 
till  a  greater  quantity  of  water  floats  her  off;    or  till  (he  is  drawn  out  into  the 
flream,  by  the  application  of  mechanical  powers. — Falc.  Mar.  Did. 

2.  I  iNSKRT  the  above  definition,  becaufe  doubts  have  fometimes  arifen, 
whether  a  fliip  which  has  been  aground,  and  got  off,  may  be  properly  faid  to 
be  Jlrandcd,  and  to  fubjeft  infurers  to  pay  a  particular  average,  within  the 
meaning  of  the  A^.  B.  at  the  foot  of  our  policies  ;  which  point  was  tried  in  1754, 
on  corn  damaged,  and  adjudged  in  the  affirmative. — Cantillon  v.  L.  A.  Co. 

3.  See  Afiore,  Corn,  Stranded,  Unlefs. 

ALGIERS. 

3.  "\TO  fhip,  or  veffel,  belonging  to  our  government  of  Algiers,  fhall 
■^^  cruize  near,  or  in  fight  of  any  of  the  roads,  havens,  or  ports,  towns, 
or  places  belonging  to  the  faid  king  of  Great-Britain,  or  any  way  difturb  the 
peace  and  commerce  of  the  fame :  and  in  compliance  with  the  eighth  article 
of  the  treaty  of  1682,  we  do  fincerely  promife  and  declare,  that  fuch  orders 
fhall  for  the  future  be  given  to  all  our  commanders,  that,  under  a  fevere 
penalty  and  our  utmoft  difpleafure,  they  (hall  not  enter  into  the  channel  of 
England,  nor  come,  or  cruize  in  fight  of  any  part  of  his  Majefty  of  Great- 
Britain's  dominions  any  more  for  the  time  to  come. — Treaty  with  Alg.  1700. 
— Confirmed  by  treaty,  1716. 

2.  We  have  been  informed  by  mafters  of  (hips  who  were  prifoners  at 
Algiers,  that  the  Algerines  had  even  intelligence  from  mofl  ports  what 
cargoes  the  ffiips  brought,  and  what  force  the  fhips  themfelves  were  of.  And 
perhaps  there  are  people  amongft  them  who  know  better  of  what  value  the 
fhips  are,  for  whofe  freedom  they  receive  yearly  prefents,  than  the  perfons  at 
the  helm  do  in  thofe  ftates  who  negotiated  the  peace  with  them.  All  fhips 
coming  from  and  going  to  the  Baltick,  are  at  beft  but  of  very  little  value  to 
the  Infidels.  However  whilft  the  ftates  thefe  fhips  belong  to  keep  up  a 
marine,  the  Streights  trade  may  be  reckoned  of  fome  value  to  them,  as  it 
ferves  to  train  up  mariners  in  their  own  country. — 2  Magens,  714. 

3.  See  Barbary,  Treaty, 

ALIEN.  I 

See  Prelim.  Life.  82.  Hojlage,  hfurer, 

ALTERATION 


1. 


[    13    ] 


ALTERATION  of  POLICY,  VOYAGE,  or  RISQUE. 

WHENEVER  it  may  be  requifite  to  make  any  alteration,  erafement, 
addition,  or  interlineation,  in  a  policy,  after  it  has  been  under- 
Avrltten,    it  ought  to  be  done  with  caution  and  accuracy,    and  a  mutually 
clear  underftanding  between  the  parties  : — for  otherwife,    if  it  varies  at  all 
from  the   infured's  order,  or  the  infurer's  entry,    difagreements  of  moment 
may  arife,  and  be  fometimes  troublefome  to  adjuft  ;  yet  fuch  alterations,  &c. 
are  very  often  made  by  brokers  in  a  manner  fo  very  loofe  and  hafty,  and  with 
fo  little  attention  of  the  underwriters,  that  the  nature  of  the  rifque,  originally 
defcribed  in  the  policy,  is  fometimes  by  the  introduftion  or  erafement  of  a 
fmgle  word  or  monofyllable  only  (without  any  alteration  of  the  premium) 
rendered  entirely  different  from  what  is   underftood,    or  perceived   by  the 
underwriters,  'till  the  fubfequent  effeft  of  it  in  fome  unfavourable  event  opens 

their  eyes. 1  mean  profefledly,  by  making  fhort  obfervations  of  this  kind  and 

others  throughout  this  work,  to  awaken  the  attention  of  underwriters  (who  in 
general  are  too  indolent)  to  the  exercife  of  fome  degree  of  propriety  and 
judgment  in  all  the  vaft  variety  of  circumftances  and  tranfaftions,  which 
continually  occur  in  matters  of  infurance  ; — and  this  with  a  view  to  promote, 
amongft  all  the  parties  concerned  therein,  more  regularity  and  honour  than 
ufually  prevail. 

2.  It  would  be  a  proper  check  againft  fuch  alterations,  as  well  as  againfl: 
fallacious  informations,  were  underwriters  to  note  concifely  in  their  original 
entries  of  the  policies  which  they  fubfcribe,  the  written  particulars  inferted 
therein,  alfo  the  moft  material  circumflance  or  two  verbally  mentioned  by  the 
broker  ;  and  to  have  a  column  in  the  alphabet  of  their  rifques  (which  they 
ufually  carry  about  them)  wherein  to  minute  briefly  from  their  entries  fuch 
notes.  The  praftice  of  making  fuch  fhort  minutes  would  become  very  familiar 
by  habit ;  and  the  concurrent  teftimony  of  the  entries  of  the  feveral  under- 
writers on  the  fame  policy,  w^ould  be  a  kind  of  evidence  againfl  fuch  fallacious 

.verbal  informations,  alterations,  additions,  &c. For  inflance,  a  policy  is 

underwritten  at  a  certain  premium,  very  moderate,  there  being  no  return 
for  convoy,  the  affured  having  been  perfuaded  the  fhip  would  fail  without 
convoy ;  but,  finding  that  fhe  happened  to  go  with  convoy,  the  underwriters 
have  been  applied  to,  many  months  after  the  voyage  was  performed,  to 
make  a  return  of  3,  4,  or  6  per  cent,  for  convoy ;  with  which  they  have 
complied,  a  claufe  then  appearing  to  that  effeft,  which  they  have  fuppofed 

was  inferted  originally. In  another  policy  there  is  a  -warranty,  that  the 

fhip  fhall  have  a  certain  number  of  guns,  and  a  certain  number  of  men, 
meaning  failors ;  but  after  the  infurance  has  been  effefted,  the  broker, 
or   affured,    have  taken  the  liberty,    without  confent,    to  add,    immediately 

following  the  word  men,   the  words,  including  paffengers. A  liberty  of 

touching  at  an  intermediate  place,  a  valuation,  and  various  other  particulars, 
have  in   like   manner  been  arbitrarily   interpolated,  on   different  occafions, 

E  or 


H 


AMICABLE     SOCIETY. 


or  alterations  made,  in  policies,  of  which  the  underwriters  have  taken  no 
cognizance,  nor  have  they  perceived  them  ;  or  if  any  of  thenr  have  made  a 
difcovery  of  it,  it  has  been  difficult,  or  very  difagreeable,  to  prove  it ;  even 
though  they  fhould  be  fubjeft  to  a  lo/s,  through  fuch  alteration. 

3.     See  Prelim.  Difc.  ^\.  Deviatmi,  Policy,  Ri/que,  Touching,  Valuation, 
Voyage,  War,  Written  Claufe. 

AMERICA. 

See  Prelim.  Difc.  40,  79.  Colony,  Navigation,  Prohibited  Goods. 

AMICABLE   JUDICATORY,   or   COURT. 

1.  T  N  the  Preliminary  Difcourfe  prefixed  to  this  work,  page  15  to  22,  I 
-^  have  fliewn  the  necelhty,  and  propofed  the  heads,  or  brief  hints 
of  a  Plan,  for  the  fummary  decijion  of  difputed  matters  of  infurance ;  which 
might  unquefiionably  be  carried  into  execution,  with  very  little  difficulty  ; 
efpecially  as  to  what  regards  the  adjuftment  of  a  vaft  variety  of  lolTes, 
averages,  falvages,  &c.  where  the  queflions  depend  entirely,  or  chiefly,  on 
aftual  experience  in  the  cufloms  and  ufages,  and  an  expertnefs  in  the  ftating 
and  calculating  fuch  matters, — and  not  merely  on  points  of  law. 

r  .2.     See  Average,  Cafes  adjudged,  Chamber  of  AJfurance,  Court  Merchant^ 
Court  of  Policies,  Jury,  Law,  Precedent, 


AMICABLE      SOCIETY. 

jj.  T^  E  R  M  S,    methods,  and  advantages,  of  infuring  lives,   in  the  office 
A     of  the  Amicable  Society,  for  a  perpetual  affiarance,  kept  in  Serjeant's 

Inn,  Fleet-Street. On  the   25th  of  July  1706,    the  then  lord  biffiop  of 

Oxford,  Sir  Thomas  Aleyn,  Bart,  and  others,  obtained  from  the  late  Queen 
Anne,  a  charter,  for  incorporating  them  and  their  fucceffors,  by  the  name  of 
the  Amicable  Society,  for  a  perpetual  affuranee  office  ;  with  power  to  pur- 
(chafe  lands,  fue,  and  be  fued,  and  to  have  a  comiilon  feal.  The  nunriber  oF 
perfons  to  be  incorporated  was  not  to  exceed  2600,  but  might  be  lefs ;  each 
perfon  to  receive  a  policy,  under  the  feal  of  the  corporation,  entitling  his 
nominee  or  affigns  to  a  dividend  on  his  or  her  deceafe,  in  the  manner  men- 
tioned in  the  cluirter.  After  paying  the  charges  of  the  policy,  and  10s. 
entiancc-moncy,  each  perfon  was  to  pay  61.  4s.  per  annum,  which  annual 
payments  have  fince,  by  the  increafe  of  the  fociety's  ftock,  been  reduced  to 
5J.  a  year,  payable  quarterly. — From  thefe  payments,  which  mull  be  made  to 
the  5th  of  April  next  after  the  deceafe  of  each  member,  the  dividends  to 
claimants  are  to  arife  ;    for  which  reafon,  if  the  members  are  at  any  time  a 

year 


AMICABLE      SOCIETY 


15 


year  and  a  quarter  in  arrear,  fuch  defaulters  are  excluded  from  all  benefit  of 
their  policies. — The  affairs  of  the  corporation   are  managed  by  a  court  of 
direftors,  according  to  the  powers  granted  by  the  charter,  and  the  direflions 
of  the  by-laws.     The  direftors  are  twelve,  chofen  yearly,   within  forty  days 
after  every  5th  day  of  April.     The  majority  of  members  aflembled  at  a 
general  court   (which  is  never  to  confift  of  lefs  than  twenty)  are  empowered 
to  make  by-laws  and  ordinances  for  the  good  government  of  the  corporation. 
The  charter  direfts  that  one  of  the  members  of  the  fociety  fhall  be  elefted 
their  regifter,  who  being  alfo  their  receiver   and  accomptant,    is  therefore 
required  by  the  by-laws  to  give  good  fecurity  in  the  fum  of  2000I.  at  leafl. — • 
All  perfons  at  the  time  of  their  admiihon,    are  to  be  between  the  ages  of 
twelve  and  forty-five,  and  mull  then  appear  to  be  in  a  good  flate  of  health. 
Perfons  living  in  the  country  may  be  admitted  by  certificates  and  affidavits, 
which  may  be  had  at  the   office.     Any  perfon  may  have  two  or  three  feveral 
infurances  (or  numbers)   on  one  and  the  fame  life,   whereby  fuch  perfon  will 
be  entitled  to  a  claim   on  each  number  fo  infured. — Five  members  of  the 
fociety  are  annually  elefted  auditors,  who  are,  by  their  office,  to  infpeft  every 
tranfaftion  of  the  fociety,  to  examine  all  vouchers  for  receipts  and  payments, 
and  upon  oath  to  lay  before  the  quarterly  and   annual  general  courts,  the 
quarterly  and  annual  accounts  of  the  fociety :    and  on  the  day  before  the 
holding  each  court  of  direftors,   the   auditors  are  to  ftate  and  enter  into  the 

direftors'  minute-book,   a  balance   of  the  caffi  of  the  fociety. In  the  year 

1749,  it  was  thought  necelfary  to  lay  a  premium  of  7I.  10s.  upon  the  fale  of 
each  number  ;   which  premium  is  ftill  continued,  and  muff;  be  paid,  together 

with  7s.  6d.  for  the  charges  of  the  policy,   at  the  time  of  admiffion. That 

tlie  good  end  intended  by  the  charter  has  been  purfued,  and  the  fociety  found 
to  be  greatly  beneficial  to  the  public,  will  evidently  appear  from  a  ftate  of 
their  yearly  dividends  from  Lady-day  1760,  to  Lady-day  1779.  And  fo 
confiderable  has  been  the  increafe  of  the  dividends  for  the  nineteen  years  laft 
part,  that  each  claim,  during  that  period,  has  amounted,  upon  an  average, 
to  upwards  of  172I. 


Anno 

1760- 

1761- 

1762- 

1763- 

1764- 

1765- 
1766- 


£ 
-260 


-125 

■125 
-125 

-125 
-128 
-210 


s. 

5 
o 

o 

o 

o 

8 

4 


d. 

3 
o 

3 
o 

o 

3i 
o 


Anno 

1767- 

1768- 

1769- 

1770- 

1771- 

1772- 


£  s. 

-151  o 

'148  6 

-164  14 

-16b  15 

-203  6 

-182  6 


d. 
o 
8 

4i 

8 

1-2- 


Anno  £  5.     d. 

1773 259     2     9 

1774 206  15   lOf 

1775 ^79  13  10? 

1776 194     7    9 

1777 ^55  9    ii 

1778 207  12     1 


2.  At  a  general  court  held  the  10th  day  of  May  1770,  an  order  was  made 
for  further  augmenting  the  dividends  on  claims,  fo  as  that  for  the  future,  they 
might  not  be  lefs  than  150I.  each  claim;  but  they  have  been  confiderably 
more,  as  appears  above ;  for  M'hich  purpofe  the  fociety  did  then  fet  apart  a 
confiderable  quantity  of  their  flock  in  the  funds.     In  confideration  whereof, 

the 


i6  AMICABLE      SOCIETY. 

the  blank  numbers,  which  until  that  time,  were  confidered  as  the  property 
of  the  members,  and  fold  for  their  advantage,  are  to  fink  into,  and  become 
the  property  of  the  fociety  at  the  end  of  the  year  in  which  the  members  die. 

3.  The  advantages  propofed  for  members  of  this  fociety,  are  principally 

as  follows  ; To  clergymen,  phylicians,  furgeons,  lawyers,  tradefmen,  and 

particularly  perfons  poffelled  of  places  or  employments  for  life,  whofe  incomes 
are  fubjetl  to  be  determined  or  diminifhed  at  their  refpeftive  deaths,  who  by 
infurin'T  their  lives,  by  means  of  this  fociety,  may  now  leave  to  their  families 
a  claim,  or  right  to  receive  150I.  at  leaft,  for  every  five  pounds  annually  paid 

in,  and  many  times  a  larger  fum,  as  appears  by  the  preceding  account. To 

married  perfons,  more  efpecially  where  a  jointure,  penfion,  or  annuity 
depends  on  both  or  either  of  their  lives,  by  infuring  the  life  of  the  perfons 

entitled  to  fuch  annuity,  penfion,   or  jointure. To  dependents  upon  any 

other  perfon  entided  to  a  falary,  benefaftion,  or  other  means  of  fubfiflence, 
during  the  life  of  fuch  perfon,  whofe  life  being  infured  in  this  fociety,  eitlier 
by  themfelves,  or  upon  the  perfon  upon  whom  they  are  dependent,  will 
entitle  them  to  receive    upon  the  death  of  fuch  perfon,  a  claim  or  claims 

as  before  mentioned. To    perfons  wanting   to   borrow   money,   who   by 

infuring  their  lives,  are   enabled  to  give  a  collateral  fecurity  for  the  money 

borrowed. To  creditors  entitled  to  demands  larger  than  their  debtors  are 

able  to  difcharge,  fuch  creditors  may,  by  a  like  infurance  upon  the  life  of  the 
debtor,  fecure  to  themfelves  the  principal  fums  at  the  death  of  the  debtor. 

The    above-mentioned    advantages  are   offered  chiefly  with   refpeft   to 

perpetual  infurances  of  life ;  but  temporary  infurers  may  find  no  lefs  advan- 
tages from  this  fociety,  as  may  plainly  appear  from  the  following  inflance ; 
viz.  A.  B.  has  agreed  for  the  purchafe  of  an  office  or  employment,  but  wants 
300I.  or  400I.  to  make  up  the  purchafe-money :  he  is  willing  to  affign  a  fhare 
of  the  profits  or  income  of  his  office,  as  a  fecurity  or  pledge  for  the 
repayment  of  the  principal  with  intereft,  but  cannot  obtain  a  loan  of  that  fum 
Avithout  infuring  his  life  "till  the  whole  be  cleared,  which  he  is  enabled  to 
do  by  the  help  of  this  fociety.  For  example  :  he  purchafes  three  numbers, 
on  each  of  which  he  infures  his  life,  and  thereby  his  affigns  become  entitled  to 
three  feveral  claims  at  his  death;  which  claims,  by  the  above-mentioned 
provifions,  will  not  be  lefs  than  150I.  each,  and  ■  may  amount  to  more;  he 
affigns  and  depofits  his  policy  with  the  lender :  he  pays  to  the  fociety  7I.  10s. 
for  each  number  infured,  and  for  the  yearly  contributions  on  the  three 
numbers,  no  more  than  5U  each,  which  is  apparently  after  the  rate  of 
3I.  6s.  8d.  per  cent,  and  the  terms  eafier  than  any  other  offices  do  infure  at, 
who  infure  for  a  year  only,  and  after  that  are  at  liberty  to  refufe  any  further 
infurance  :  whereas  in  this  fociety  the  infurance  continues  during  the  life  of 
the  infured,  unlcfs  excluded  for  the  non-payment  of  his  quarterly  contributions. 

4.  Attendance  is.  daily  given  at  the   office  of  the  faid  fociety  from 

nine  in  the    morning  'till  two  in  the  afternoon,  holidays  excepted. AH 

perfons  applying  to  the    Amicable  Society  for  infurances,    are  required  to 

give 


AMICABLE      SOCIETY.  17 

give  in  writing,  the  names,  places  of  abode,  prof'effions,  and  ages  of  the 
perfons  propofed  for  infurance  ;  who  muft  not  be  in  the  army  or  navy,  or 
likely  to  refide  in  foreign  parts,  or  of  dangerous  occupations. 

5.  Remarks. — It  is  obvious,  that  regulating  the  dividends  among  the 
nominees  by  the  number  of  members  who  die  every  year,  is  not  equitable  ; 
becaufe  it  makes  the  benefit  which  a  member  is  to  receive,  to  depend,  not  on 
the  value  of  his  contribution,  but  on  a  contingency  ;  that  is,  the  number  of 
members  that  fhall  happen  to  die  the  fame  year  with  him.  This  regulation 
mufl  alfo  have  been  difadvantageous  to  the  fociety ;  as  will  appear  from  the 
following  account  of  the  natural  progrefs  of  the  affairs  of  fuch  a  fociety,  when 

eftabliftied  on  a  right  plan. Suppofe  a  thoufand  perfons,  whofe  -common 

ages  are  thirty-fix,  to  form  themfelves  into  a  fociety  for  the  purpofe  of  affuring 
a  particular  fum  at  their  deaths,  to  fuch  perfons  as  they  fhall  name,  in  confi- 
deration  of  a  particular  annual  contribution  to  be  continued  during  their 
lives.  Suppofe  the  annual  contribution  to  be  5I.  and  the  firfl  payment  to 
be  made  immediately.  Suppofe,  likewife,  the  original  number  of  the  fociety 
to  be  conftantly  kept  up  by  the  admiffion  of  new  members,  at  thirty-fix  years 
of  age,  in  the  room  of  fuch  as  die.  It  appears  by  Dr.  Price's  Obfervations 
on  Reverfionary  Payments  &c.  p.  33,  that  an  annual  payment,  beginning 
immediately,  of  5I.  during  a  life  now  at  the  age  of  thirty-fix,  Ihould  entitle, 
at  the  failure  of  fuch  a  life,  to  172I.  reckoning  intereft  at  4  percent,  and 
taking  Mr.  De  Moivre's  valuation  of  lives. — A  thoufand  perfons,  all  thirty-fix 
years  of  age,  will  die  oflF  at  the  rate  of  twenty  every  year.  The  difburfements, 
therefore,  of  fuch  a  fociety  will  be  the  firll  year  twenty  times  172I.  or  3440I. 
and  it's  income  will  be  5000I.  It  will,  therefore,  at  the  end  of  the  year,  have 
a  furplus  of  1560I.  to  put  to  interefl. — In  confequence  of  the  yearly  acceffions 
to  fupply  vacancies,  the  number  dying  annually  will  be  always  increafing 
after  the  firfl  year.  In  fifty  years  it  will  attain  to  a  maximuvi ;  and  then,  the 
affairs  of  the  fociety  will  become  Jlationary,  and  the  numbers  dying  annually 
will  be  forty,  and  it's  annual  expence  will  be  6880I.  exceeding  the  annual 
contribution  1880I.  But,  in  the  mean  time,  by  improving  it's  furplus  monies, 
it  will  have  raifed  a  capital  equal  to  this  excefs,  and  confequently  it's  affairs 

will  be  fixed  on  a  firm  bafis  for  all  fubfequent  times. Suppofe  now  that 

fuch  a  fociety,  at  it's  eftablifiiment,  fhould  refolve  to  divide  it's  whole  yearly 
income  among  the  nominees  of  deceafed  members.  The  effeft  of  this  would 
be,  that  no  capital  could  be  raifed ;  that  the  dividends  payable  to  nominees 
would  diminifh  continually,  'till,  at  the  time  that  the  greatefl  number  of 
members  came  to  die  annually,  or  at  the  end  of  fifty  years,  they  would  be 
reduced  to  half;     and  all  claimants,   after   this   period,    receive    too   little, 

becaufe  the  firfl  claimants  had  received  too  much. At  the  time  of  the 

inflitution  of  the  Amicable  Corporation,  the  interefl  of  money  was  at  6  per 
cent,  and,  as  they  admit  all  between  twelve  and  forty-five,  the  mean  age  of 
admiffion  cannot  probably  be  fo  great  as  thirty-fix.  It  appears,  therefore, 
that  had  they  avoided  the  error  now  mentioned,  and  gone  from  the  firfl  on 

F  the 


i8 


•  A    M     S     T 


R    D     A     M. 


the  plan  I  have  defcribed,  they  might  have  all  along  paid  to  each  nominee 
172I.  befides  raifing  a  capital  much  greater,  in  proportion  to  the  number  of 
members,  than  that  I  have  fpecified,  by  the  help  of  the  excefs  of  their  annual 
payments  above  5I.  and  fome  other  advantages  %vhich  they  have  enjoyed. 
Indeed  I  cannot  doubt  but  that,  with  thefe  advantages,  they  might  before 
this  time  have  found  themfelves  able  to  pay  at  lead  200I.  to  each  nominee  ; 
and  at  the   fame  time  reftrifted  diemfelves,  as  they  now  do,  to  an  annual 

payment  of  5I. 1  have  already  mentioned  one  inftance   in  which  the  plan 

of  this  fociety  is  not  equitable.  Another  inftance  of  this  is,  their  requiring 
the  fame  payments  from  all  perfons  under  forty-five,  without  regarding  the 
differences  of  their  ages;  whereas,  the  annual  payments  of  a  perfon  admitted 
at  forty-five,  ought  to  be  double  the  annual  payment  of  a  perfon  admitted 

at  twelve. Further ;    the  plan  of  this  fociety  is  fo  narrow,   as  to  confine 

it's  ufefulnefs  too  much.  It  can  be  of  no  fervice  to  any  perfon  whofe  age 
exceeds  forty-five.  It  is,  likcwife,  far  from  being  properly  adapted  to  the  cir- 
cumftances  of  perfons,  who  want  to  make  affurances  on  their  lives,  ^ox  ovAy  JJiort 
terms  of  years  ;  the  annual  payments  are  too  high.  Neither  is  it  at  all  adapted 
to  the  circumftances  of  perfons,  who  want  to  make  affurances  on  particular 
furvivorfiips. — 'For  example ;  a  perfon  defires  to  make  provifion  only  againft  the 
danger  of  his  dying  Jirji :  he  enters  himfelf  into  this  fociety  ;  and  by  an  annual 
payment  of  5I.  entitles  his  nominee  to  150I.  In  a  few  years,  perhaps,  his 
nominee  happens  to  die  ;  and  having  then  lofl;  the  benefit  he  had  in  view,  be 
determines  to  forfeit  his  former  payments,  and  to  withdraw  from  the  fociety. 
In  this  way,  probably,  this  fociety  muft  have  gained  fome  advantages.  But 
the  right  method  would  have  been,  to  have  taken  from  fuch  a  perfon  the  true 
value  of  the  fum  affured,  "  on  the  fuppofition  of  non-payment,  provided  he 
*'  fhould  furvive. "  In  this  way  he  would  have  chofen  to  contraft  with  the 
fociety ;  and  had  he  done  this,  he  would  have  paid  for  the  affurance  (accor- 
ing  to  Dr.  Price's  calculation  in  his  Obfervations  on  Reverfionary  Payments) 
3I.  8s.  in  annual  payments,  to  begin  immediately,  and  to  be  continued  during 
the  joint  continuance  of  his  own  life,  and  the  life  of  his  nominee. — — All  thefe 
objections  are  removed  by  the  plan  of  the  fociety  which  has  juftly  ftiled 
itfelf  the  Society  for  equitable  Affurances'  on  Lives  and  Survivorfiiips. 

6.     S^TL  Equitable  Society,  Lives. 


AMSTERDAM. 

I.     Policy,    on  Ship*,   at  Amfterdam.    . 

WE  underwritten  do  afTure  you  or  whom  it  elfe,  may  concern, 

wholly,  orpardy,  friend;  or  foe)  none  excepted,  viz.  each  for  the  liini  here  by 
us  underwritten,  from  on  the  hull,  or  body  of  the  fhip, 

which  God  preferve,  with  all  her  guns,  ammunition,  utcnfils,  and  appurtenances  of  the" 
fame,  belonging  to  the  faid  or  any  body  elfe,  called 

whereof  the  maftcr  is  or  who  in  his  ftead  as  matter,  ot' 


•  That  on  Goods  is  nearly  fimilar. 


matters, 


ANCHOR.  19 

mafters,  may  navigate  of  which  we  hereby  take  the  rifques,  perils,  and 

adventures  to  run  for  our  account,  from  the  hour  and  day  that  the  faid  fhip  has  made  a 
beginning  to  lade  the  merchandize,  or  fliall  have  taken  on  board  her  ballaji  for  the  faid  voyage, 
and  end  twenty-one  days  after  the  faid  fliip  fhall  be  arrived  at  the  lafl  dellined  place  of 
unlading,  or  fo  much  fooner  as  flic  fliall  be  entirely  unladed.  The  faid  fliip  fhall  be 
permitted  to  fail  forwards,  and  backwards,  to  turn  and  wind  to  the  right,  left,  and  to  ail 
fides,  as  the  mafter,  or  mafters  fliall  pleafe,  and  think  proper  for  the  fervice  and  benefit 
of  the  faid  voyage  :  the  afore-mentioncd  dangers  confifting  of  all  perils  at,  fea,  ftrefs  of 
weather,  fire,  and  wind,  arrcfts  by  friends  and  enemies,  detentions  by  kings,  and  queens, 
princes,  lords,  and  republicks,  letters  of  mart  and  contra-mart,  carelcfneji  of  mafers  and 
failors,  villainies  of  the  faid  failors,  and  all  other  perils  and  adventures  which  ?iny  wife 
may  happen  to  the  fhip  without  means  of  the  infured,  thought  of,  or  not  thought  of: 
putting  ourfelves,  in  all  fuch  cafes,  in  your  place  to  pay  to  you  the  infured,  Or  youl- 
faflor,  all  the  damage  which  von  fliall  have  fuffered,  viz.  each  in  proportion  to  the  fum 
which  he  fhall  have  underwrote,  the  firft  as  well  as  the  laft  infurer,  within  three  months 
after  loe  fliall  have  notice  given  us  of  the  lof,  or  damage.  And  in  fuch  cafe  we  do  grant  you 
the  infured,  and  all  others,  full  power  to  lend  an  hand,  as  well  to  our  lofs,  as  to  our 
benefit,  in  the  faving  and  benefiting  of  die  faid  fliip  and  the  appurtenances 

of  the  fame  ;  alfo  to  fell  the  fame,  and  to  diftribute  the  money,  in  cafe  the  matter  doth 
require  it,  without  afls.ing  our  confent,  or  leave  :  and  we  fliall  alfo  pay  the  charges 
attending  the  fame,  bcfides  the  damages  fallen  thereon,  whether  any  thing  be  faned,  or 
not :  and  faith  fliall  be  given  to  the  account  of  charges  on  the  oath  of  him  who  has  taken 
the  fame,  without  alleging  any  thing  againft  it :  provided  in  ready  cafli  be  paid  us  for  the 
confideration   of  the  infurance  ■  •  per  hundred,    under  obligation  and 

fubmiffion  of  our  perfons  and  goods  prefent  and  to  come  ;  renouncing,  as  perfons  of 
honour,  all  cavils  and  exceptions  that  may  be  contrary  to  thefe  prefents;  reciprocally 
fuhmitting  all  differences  wkvch  may  arife  concerning  damage  and  premiums,  to  the  decifwn 
of  the  chamber  of  infurance  ;  chufing  in  cafe  of  our  dwelling  beyond  their  jurildiflion;  foy 
domicilium  citandi  and  executandi,  the  l)oufe  of  the  fecretary  of  the  faid  chamber  for  the 
time  being.     Done  at  Amfterdarn,  &c. 

2.     See   Abandonment,    Bargain,    Chamber  of  AJfurancc,    Commencement, 
End,  Fire,  Negligence,  Notice,.  Ordinance,  Payment,  Policy. 


ANCHOR. 

1.  T?VERY  fliip  has,  or  ougm'tfa'have,  three  principal  anchors,  with  a 
•^-^  cable  to  each;  viz.  the  (heet,  the  beft  bower,  and  fniall  bower,  fo 
called  from  their  ufual  fituation  oh^  the  ffiip's  howS.  There  are  belfides 
fmaller  anchors,  for  i-emoving  a  (hip  from  place  to  pliice  in  a  hirboUr  or' 
river,  where  there  may  not  be  room  or  wind  fdr  failing;  thefe  a^e'  the 
ftream-anchor,  the  kedge  and  grappling ;  this  laft,  however,  is  chiefly  defigned 
for  boats. — Falc.  Mar.  DiH. 

2.  The  lofs  of  an  anchor  caufe-d  oy  the  rubbing  and  wear  of  a  cable  upon 
rocks,  which  have  broken  and' cu't  it,  is  not  a  damage  happened  by  peril  of* 
the  fca ;  'tis  a  natural  confequence  of  the  fervice  of  things  deftined  to  the  ufe 
of  the  fliip  ;    and  for  the  fame  reafon  that  the  infurers  are  not  liable  for  the 

lofs 


20 


A    P    P    E    A    L. 


lofs  of  cordage,  Jails,  &c.  through  their  great  ufe,  or  wear  and  tear,  neither 
are  they  anfwerable  for  anchors  or  cables  worn,  broken,  or  cut  by  the  effett 
of  currents,  pitching  of  the  fhip,  and  the  like :  it  is  another  thing  when  the 
lofs  or  damage  happens  through  the  violence  of  the  winds  or  fea. — The 
atteftations,  however,  of  maflers  of  fhips,  on  fuch  occafions,  are  often 
fraudulent. — 2  Valins  Comvi.  81. 

3.  By  Stat.  3  Geo.  1.  c.  13.  f.  6. — The  lord  M'arden  of  the  cinque  ports 
fhall  nominate  under  his  hand  and  feal  three  or  more  perfons  in  each  of  the 
cinque  ports,  two  ancient  towns,  and  their  members,  to  adjuft  any  difference 
relating  to  falvage,  between  the  mailer  of  any  (hip  that  has  in  bad  v/eather 
been  forced  from  her  anchor  and  cable,  and  the  perfons  bringing  them  afhore : 
and  if  any  veffel  be  forced  from  her  cables  and  anchors  by  extremity  of 
weather,  and  leave  the  fame  in  any  roads  within  the  jurifdiftion  of  the  cinque 
ports,  and  the  falvage  cannot  be  adjufled  between  the  perfons  concerned ; 
the  fame  fhall  be  determined  in  twelve  hours  by  any  one  or  more  of  the  perfons 
appointed  as  aforefaid. 

4.  See  Accident,  Cable,  General  Average,  Stranding,  Wear  and  Tear. 

ANTWERP. 

1.  TN  the  policy  ufed  at  Antwerp  there  is  a  claufe  whereby  the  infurers 
-^  promife  to  pay  all  the  charges  that  fhall  accrue  for  the  prefervation 
of  goods,  &c.  xohether  any  thing  be  recovered  or  not. 

2.    See  Abandonment,  Ordinance,  Salvage. 

APPEAL. 

1.  A  PPEALS  from  the  vice-admiralty  courts  in  America,  and  our  other 
-^^^  plantations  and  fettlements,  may  be  brought  before  the  courts  of 
admiralty  in  England,  as  being  a  branch  of  the  admiral's  jurifdiftion,  though 
they  may  alfo  be  brought  before  the  king  in  council.  But  in  cafe  of  prize 
veflels,  taken  in  time  of  war,  in  any  part  of  the  world,  and  condemned  in  any 
courts  of  admiralty  or  vice-admiralty  as  lawful  prize,  the  appeal  lies  to  certain 
conimijfioners  of  appeals  confifting  chiefly  of  the  privy  council,  and  not  to 
judges  delegates.  And  this  by  virtue  of  divers  treaties  with  foreign  nations  ; 
by  which  particular  courts  are  eftablifhed  in  all  the  maritime  countries  of 
Europe  for  the  decifion  of  this  queflion,  xohether  lawful  prize  or  not :  for 
this  being  a  queflion  between  fubjefts  of  different  flates,  it  belongs  entirely 
to  the  law  of  nations,  and  not  to  the  municipal  laws  of  either  country,  to 
determine  it.  The  original  court,  to  which  this  queflion  is  permitted  in 
England,  is  the  court  of  admiralty  :    and  the  court  of  appeal  is  in  effeft  the 

king's 


ARBITRATION      and      AWARD. 


21 


king's  privy  council,  the  members  of  which  are,  in  confequence  of  treaties, 
commiffioned  under  the  great  feal  for  this  purpofe.  In  1748,  for  the  more  " 
fpecdy  determination  of  appeals,  the  judges  of  the  courts  of  Weftminfter-Hall, 
though  not  privy  counfellors,  were  added  to  the  commifiion  then  in  being. 
But  doubts  being  conceived  concerning  the  validity  of  that  commiflTion,  on 
account  of  fuch  addition,  the  fame  was  confirmed  by  Stat.  22  Geo.  2.  c.  3. 
with  a  provifo,  that  no  fentence  given  under  it  {hould  be  valid,  unlefs  a 
majoritv  of  the  commiffioners  prefent  were  aftually  privy  counfellors.  But 
this  did  not,  I  apprehend,  extend  to  any  future  commiflioners  :  and  fuch  an 
addition  became  indeed  wholly  unneceffary  in  the  courfe  of  the  war  which 
commenced  in  1756  ;  fmce,  during  the  whole  of  that  war,  the  commiflion  of 
appeals  was  regularly  attended,  and  all  it's  decifions  condufted  by  a  judge, 
whofe  maflerly  acquaintance  with  the  law  of  nations  was  known  and  revered 
by  every  flate  in  Europe.; — 3  Black.  Com.  69. 


ARBITRATION     and     AWARD. 

1.  TpXPERIENCE  having  fliewn  the  great  ufe  of  thefe  peaceable  and 
-*^  domeflic  tribunals,  efpecially  in  fettling  matters  of  account,  and  other 
mercantile  tranfaftions,  which  are  difficult  and  almofl;  impoffible  to  be  adjufted 
on  a  trial  at  law ;  the  legiflature  has  now  eflabliflied  the  ufe  of  them,  as  well 
in  controverfies  where  caufes  are  depending,  as  in  thofe  where  no  aftion  is 
brought,  and  which  ft  ill  depend  upon  the  rules  of  the  common  law  :  enafting 
by  Stat.  9  and  10  W.  3,  c.  15,  that  all  merchants  and  others,  who  defire  to 
end  any  controverfy  (for  which  there  is  no  other  remedy  but  by  perfonal 
aftion  or  fuit  in  equity)  may  agree,  that  their  fubmiftion  of  the  fuit  to 
arbitration  or  umpirage  fliall  be  made  a  rule  of  any  of  the  king's  courts  of 
record ;  and,  after  fuch  ^  ule  made,  the  parties  difobeying  the  award  fhall  be 
liable  to  be  punifhed,  as  for  a  contempt  of  the  court ;  unlefs  fuch  award  fliall 
be  fet  afide,  for  corruption  or  other  mifbehaviour  in  the  arbitrators  or  umpire, 
proved  on  oath  to  the  court,-  within  one  term  after  the  award  is  made.  And 
in  confequence  of  this  ftatute,  it  is  now  become  a  confiderable  part  of  the 
bufmefs  of  the  fuperior  courts,  to  fet  afide  fuch  awards  when  partially  or 
illegally  made  ;  or  to  enforce  their  execiition  M'hen  legal,  by  the  fame  procefs 
of  contempt,  as  is  awarded  for  difobedience  to  fuch  rules  and  orders  as  are 
iflued  by  the  courts  themfelves. — 3  Black.  Com.  17. 

2.  Case. — This  was  an  aftion  upon  a  policy  of  infurance,  wherein  a 
claufe  was  inferted,  that  in  cafe  of  any  lofs  or  difpute  about  the  policy,  itpiould 
be  referred  to  arbitration";  and  the  plaintiff  avers  in  his  declaration,  that  there 
has  been  no  reference  ;  upon  the  trial  at  Guildhall  the  point  was  referved  for 
the  confideration  of  the  court,  whether  this  aftion  was  well  laid  before  a 
reference  had  been  ?  and,  by  the  whole  court,  if  there  had  been  a  reference 
depending,  ov  made  and _  determined,  it  might  have  been  a  bar;  but  the 
agreement  offdrties  cannot  oufl  this  court,  and  as  no  reference  has  been,  nor 

G  any 


22 


A  R  B  I  T  R  A  T  I  O  N     A  N  D     AWARD. 


any  is  depending,  die  aclion  is  well  brought,  and  the  plaintiff  mud  have 
judgment. — Kitt  v.  Hollijler.  B.  R.  Eaft.  1746.   1.  Wilfon  129. 

3.  Case. — Per  curiam  ;  a  fubmilTion  of  a  matter  to  reference,  is  no  flay 
of  fuit  in  that  matter,  if  it  is  not  particularly  fo,  agreed  on. — The  Queen  v. 
Mayor  of  Carlijle.  Trin.  1.  Ann.  7  Mod.  Rep.  38. 

4.  Case. — Per  Powys,  juflicc ;  the  law  in  many  cafes  gives  a  double 
remedy,  as  fuppofe  a  claufe  in  a  will,  that  whatever  controverfy  fhall  arii'c 
on  the  conftruftipn  of  it,  fhall  be  decided  by  fuch  and  fuch  arbitra,iors  ;  the 
parties  will  have  their  election  to  decide  their  controverfies,  either  by 
arbitrators,  or  by  law.— Motion  for  a  mandamus  to  Sir  Gilbert  Heathcote, 
Lord  Mayor  of  London.     Mich.  10  Ann. — Mod.  Rep.  59. 

5.  Case. — On  a  motion  to  fet  afide  an  award  made  on  an  order  of 
reference  to  the  three  foremen  of  a  fpecial  jury,  exception  was  taken  thereto  ; 

ifl.  That  the  arbitrators  had  taken  on  them  to  give   a  particular  fum 

for  cq/is,  which  fliould  have  been  left  to  the  taxation  of  the  mafler  ; 

2dly,  That  they  had  alfo  taken  money  of  the  plaintiff  alo7ie  for  their  charges., 

without  any  bill  delivered  in  before  the  making  their  award. Hardwicke, 

chief  juflice  ;  arbitrators,  who  are  judges  to  determine  finally  the  difierenceg 
between  the  parties,  may,  if  they  think  fit,  take  on  them  to  enquire  of,  and 
give  cojls  as  well  as  damages  ;  and  this  court  has  no  power  to  take  notice  o^ 
it,  .any  otherwife  than  if  they  are  excejfive,  without  any  reafon  given  for  it, 

as  on  evidence   of  forae  undue  pradice. As  to  i\\^  fecond  point,   where 

arbitrators  (let  their  charafters  be  otherwife  never  fo  unexceptionable)  take 
money  of  one  of  the  parties  fngly,  whether  for  charges,  or  any  thing  elfe, 
before  making  their  award  ;-  as  this  is  a  matter  of  fo  tender  a  nature,  that 
evei\  tli,e  appearance  of  evil  in  it  is  to  be  avoided,  an,d  this  practice  may  be. 
of  dangerous  example,  it  is  fufficient  caufe  to  fet  afide  the  award;,  for  if  this,- 
fhould  be  fulfered,  it  will  be  hard  to  diftinguifli  what  is  corruption. — Shephard 
\.  Brand,  cafes  temp.  Ld.  Hardwicke^  53.  Trin.  7.  Geo.  2. 

6.  The  chancery  will  not  give  relief  againfl  the  award  of  the  arbitrators, 
except  it  be  for  corruption,  &c.  and  where  their  award  is  not  flri6Lly  binding 
by  the  rules   of  law,  a  court  of  equity  can  decree  a  performance.^C/wwf . 

Rep.  279.   1  Vern.  24. Where   arbitrators   are   deceived,    or   where   they 

make  their  award  clandeftinely,  without  hearing  each  party,  a  court  of  jultice 

will  iriterpofe    and  avoid  fuch  z\idir^—i,Atkyns.  64. ^If  arbitrators   are 

miftaken  in  a  plain  point  of  law/  it  is^^a\ground  to  fet  afide  an  award  ;    otherr 

wife,  if  it  had  been  a  doubtful  one.— 73  Alkyns.  494. If  there  be  a  palpable^ 

mifiake  ormifcalculation,  the  party  aggrieved  may  bring  his  bill  againfl  the. 
party  in  whofe  favour  the  award  is  made  to  have  it  re6lified,  and  not  againfii. 

the  arbitrator.— ^(^i^,. 644. -Per  Holt,  chief  juflice  ;    where  an  award  is 

ny^4^.^y  rule  of  court,,  it  fhaJl  i>o.t  be  ^cX  afide,  unlefs-  there  was  praft^fe,  wit,lj\^ 
the  arbitr^liors,  pr  fome  irregulacity,  as  want  of  notice  of  the  meeting.     Alfp, 

....  r^  vou 


ASSIGNMEN     V.  S^ 

you  fliall  not  take  exceptions  to  the  formality  of  it,  but  (hall  perform  it. — 

1  Sulk.  71.    Eaft.  10.  W.  3.  A)ioru> Per  Curiam  ;    When  it  is  moved  to 

ha.\'e/ubmi//ion  to  an  award  made  a  rule  of  court,  there  ought  always  to  be 
an  affidavit  of  notice,  becaufe  the  aft  gives  the  court  power  to  examine  the 
juIHce  of  the  award. — 12  Mod.  Rep.  524.  Trin.  1J3.  W.  3,  Slanney  v.  Slanney. 

It  is  neceffary  that  an  award  be  certain   and  final. — Wood's  Ivjl.  b.  4. 

c.  3. — ■_ — Awards  have  been  and  are  ftill  often  fet  afide  in  a  court  of  equity, 
for  corruption  and  want  of  underflanding  in  the  arbitrators. — ^If  they  appear  to 
be  miftaken  in  a  matter  of  faft,  a  court  of  equity  will  fet  afide  the  award. 

— 2   Vern.   705. It  is  a  general  rule  in  equity,   that  when  it  appears  that 

any  one  of  the  arbitrators  was  any  way  interfjled  in  the  matters  in  controverfy, 
the  award  is  to  be  fet  afide. — Complete  Arbitrator,  'j^. 

7,  If  in  the  policy  there  be  a  declaration  that  any  difpute  (hall  be  left  to 
arbitration,  and  one  of  the  parties  demand  arbitrators  before  any  litigation  be 
begun,  the  other  party  fhall  be  obliged  to  agree  to  it ;  and  refufmg  to  name 

tliem,  the  judge  fhall  do  it. — Or  din.  of  France. In  eight  days  after  the 

arbitrators  are  named',  the  parties  fhall  produce  their  documents ;  and  in  eight 
days  after  that,  fhall  fentence  be  given, — Ibid. — ■ — Such  awards  by  arbitration 
fliall  be  regiftered  or  ratified  in  the  court  of  the  admiralty  where  they  were 
made.  We  prohibit  the  judge  thereof,  under  any  pretence  whatfoever,  to 
take  cognizance  of  the  merits  of  the  caufe,  under  p&in  of  nullity,  and  the 

penalty  of  damages   and  cofls. — Ibid. Any  appeal   from   an  award   by 

arbitration  after  the  regiflering  thereof  fhall  be  to  our  parliaments,  wh^re, 

until  the  amount  of  the  fentence  be  paid,  it  fliall  not  be  received. — Jbid. 

If  fecurity  be  given  to  the  judges  who  regifler  the  fent'ence  of  arbitration,,  the 
fame  fhall  be  executed  notwithftanding  the  appeal. — Ibid. 

See  Prelim.  Difc.  22.  Amicable  Judicatory,  Chamber  of  AJfurance,  Court' 
Merchant,  Court  of  Policies. 


-A 


A     S     H     O     R     E. 

,   .  ■  ,  rii.nr 

SHIP  is  faid  to:  be  afhore,  when  fhe  has  run  npon  the  ground,  or 
on  the  fea  coafl,;  either  by  defign  or  accident.-^ ivv/c.  Mar.  Di&. 

.c  b^jfit  '    1 ^., 

2.     StK  A'gro^nd,  Cotn,  Stranded,  Unlcfs. 

.  A     ^':%  'T  "G'^'N     MEN   ^T.  ■ 

1.  T  N  France,  a  policy  of  affurance  is  a  paper  negociable  like  a  bill  to 
-*-  order,  or  bearer,  according  to  a  fentence  at  Marfeilles  the  26th  of  Jan. 
1752  ; — in  the  fame  manner  as  bills  of  lading,  invoices,  &c.  are  transferred. 
— 2  Valin's  Convtn.  45. 

2.     See  Kfe^  Mereji,  PYbprktor,  Transfer, 

ASSOCIATION, 


24  A      V      E      R      A      G      E. 

ASSOCIATION. 

1.  T  N  the  Preliminary  Di/courfc  prefixed  to  this  work,  page  35,  1  have 
-*■  propofed  the  heads  of  an  ehgible  Plan  of  an  afTociation,  and  a  com- 
mittee thereof,  for  the  deteftion,  prevention,  and  punifliment  of  impofitions, 
frauds,  and  all  other  malpraftices  in  matters  of  infurance  ;  which,  if  properly 
eftabliflied  and  executed,  as  it  might  eafily  be,  would  unqueltionably  be 
produftive  of  the  mod  beneficial  effecls. 

2.     See  Fraud,  Regijler  Office. 

AT       AND        FROM. 

1.  XTTHERE  there  are,  in  a  policy,  the  words  at  and  from  a  place 
^  ^     to  another,  the  rifque  commences,  on  a  fhip,  from  her  lafl.  arrival 
at  fuch  place  ;  and  on  goods,  from  the  beginning  to  load  them. 

2.     See  Commencemeyit,  Voyage. 

A     V     E     R     A     G     K 

.  i 
l^'^Tn  H  E  matter  of  averages  is  one  of  the  mofl  thorny  of  thofe  concerning 

. *-     infurances,  becaufe  of  the  difputes  which  they  occafion,  when  they 

are  not  well  underftood  ;  and  efpecially  w^hen  good  faith  is  not  the  bafis  of 

ihem. Several  authors,  in  different  countries,   have  treated  of  averages 

and  contribution  ;  but,  in  general,  confufedly  and  unfatisfaftorily.  In  the 
eourfe  of  this  undertaking  I  have  endeavoured  to  fcleft  from  them  what  is 
mod  conformable  to  eflabliflied  ufage,  and  juflice  ;  and  to  be  as  clear  and 
explanatory,  yet  as  little  prolix,  on  this  intricate  and  copious  fubjeft,  as  the 

nature  of  it  admits. In  the  Prelim.  Di/c.  p.  8  to  15,  p.  22  to  34,  and  64, 

I  have  expatiated  largely  on  the  very  extraordinary  irregulai'ity,  error,  and 
deceit,  which  continually  prevail  in  affairs  of  infurance  ;  more  efpecially  in 
the   adjuihnent  of  averages  : — and  p.  37   to  51,    are  briefly  ftated  fundry 

remarkable,  yet  very  common  injtanccs  thereof. 1  mentioned  alfo  p.  71, 

that  the  inferting  in  this  work  .a  number  of  Jtated  cafes  of  adjujhyient  of 
averages,  at  large,  would  not  only  unneceffarily  very  much  increafe  it's  bulk, 
but  would  be  rather  erabarraffing  than  ufeful ;  for,  that  not  any  one  of  them 
could  ferve  as  a  precifc  guide,  in  an  infinity  of  others  which  occur,  very  often 
differing  materially  in  their  particular  circumllanCes  ;  and  that  the  chief  thing 
needful  is,  to  become  well  grounded  in  jufl/'r/naj/'/^j  and  rules,  and  to  attain 

aJiabit  of  reafonijtga ightJty  thereupon.— 1  fhall  therefore  under  this  general 

x\\\t,dc\tr^.gt,[\.?iX.fi  x\\t  general  principles  and  ^o^Wn^i .  concerning  it;    and 
refer  the  reader  for  particular  rules  and  methods  to  the  various  heads  refpec- 
tively  throughout  the  work,  wljei,''^  -they  may  be  more  diredl)'  applicable. 
.T^  O  1  T  A  T  O  O  ?.  2  A  '  2.     The 


AVERAGE. 


••25 


2.     The  word  Average  fignifies,  literally,  a  mean proporiion. — Johvf.  DiEt. 
-It  is  ufed  to  fignify  a  contribution  to  a  general  lofs,  and  it  is   alfo  ufed 


to  fignify  a  particular  lofs, — Wilfon  v.  Smith. — See  Corn. Average  and 

contribution  are  fynonymous  terms  in  marine  cafes,  and  fignify  a  proportioning 
of  a  lofs  to  the  owners  of  goods  thrown  overboard  in  a  ftorm  (in  order 
to  preferve  the  remainder,  with  the  fhip,  and  lives  of  the  men)  with  the 
proprietors  of  thofe  that  are  faved,  and  of  the  veffel. — Lex  Merc,  recliv.  135. 

Average  in  the  merchant's  law,    is  ufed  or  taken  for  a  certain  contribution 

that  merchants  and  others,  who  have  their  goods  call  into  the  fea,  do  propor- 
tionably  make  towards  their  loffes  for  the  fafeguard  of  the  (hip,  or  of  the 
goods  and  lives  of  thofe  in  the  (hip  in  the  time  of  tempeft ;  and  it  is  called 
comr\h\xnon,he''.2ia^>t  it  h  proportioned  after  the  rate  of  every  man's  goods 
carrietl, — ^g  Edw.  3. — 32  Hen.  8. — 14  Car.  2. — Mai.  Lex  Merc. — Molloy. 

3.     But,  the  more  accurate  definition  and  cUJlindion  of  averages  is,  as 
follows. — Average  means  the  accidents  and  misfortunes  which  happen  to  (hips 
and  their  cargoes,  from  the  time  of  their  lading  and  failing,  'till  their  return 
and  unlading.     It  is  divided  into  three  kinds. — ill.  The  fmiple   or  particular 
average,  which  confills   in  the   extraordinary  expences  incurred  for  the  (hip 
alone,  or  for  the  merchandife  alone  ;    fuch  is  the  lofs  of  anchors,  mads,  and 
rigging,  occafioned  by  the  common  accidents  at  fea ;    the   damages   which 
happen  to  merchandifes  by  florms,  capture,  fhipwreck,  wet,  or  rotting  ;   all 
which  mull  be  borne  and  paid  by  the   thing  that  fuffered  the  damage. — 2dly, 
The  large  and  common,  called  grq/s  or  general  average,  being  thofe  expences 
incurred,  and  damages  fuflained  (whether  by  (hip,   or  goods,  or  both)  for  the 
common  good,  /ecurity,  and  prefervation,  both  of  die  merchandife  and  velfels  ; 
confequendy  to  be  borne  by  the  (hip,  freight,  and  cargo,  and  to  be  regulated 
and  proportioned  upon  the  whole. — 3dly,  The  fmall  or  petty  averages,  which 
are  expences  for  towing  and  piloting  the  fliip  out  of,  or  into  harbours,  creeks, 
or  rivers,  and  other  port  charges ;    one  third  of  which  mud  be  charged  to  the 
(hip,   and   two   thirds  to   the   cargo. — It  alfo    fignifies   a  fmall   duty  which 
merchants,  who  fend  goods   in  another  man's  fhip,  pay  to  the  mafter,  for  his 
care  of  them,  over  and  above  the  freight :  hence  it  is  expreffed  in  the  bills  of 
lading,  paying  fo  mtich  freight  for  the  faid  goods,  with  primage  and  average 
as  accullomed. — Vinnius,   Kurickc,   Guidon,   Cafa  Regis,   Diti.  cle  Trevoux, 
Valin,  S.  Ricard,  and  the  foreign  Ordinances  in  general. 

4.  If  thofe  charges  which  properly  fall  under  the  denomination  of  petty 
average,  are  extraordinary  ;  that  is,  incurred  for  the  common  benefit  of  fliip 
and  cargo,  and  are  not  ufual  in  the  ordinary  courfe  of  a  voyage  ;  they  are 
reputed  to  \it  general  average. — 2  Valin  s  Conwi.  82,  160,   171. 

5.  When  goods  arrive  damaged,  the  firfl  thing  requifite  is,  to  find  out  the 
true  quantum  of  the  damage  or  lofs,  or  the  diminution  in  value  which  they 
jiavc  (uftained  ;  and,  then,  to  apportion  that  lofs  on  what  would  have  been 
the   value  of  the  goods,    if  they  had  arrived  fafe    and   undamaged. — That 

H  quantum^ 


26  A    V^  E'    R    A    G/  E: 

quantum,  or  diminution,  is  found  by  dedlifting  the  net  proceed  of  the  fale  of 
the  damaged  goods,  from  what  xoould  have  been  their  vakie  at  the  time  of 
landing,  tliat  is,  die  net  proceed  of  the  fame  goods,  if  ihey  had  avThxdJbunrl' 
or  undamaged: — and  it  is  upon  the  net  proceed  of  the  whole  of  the  goods,  if 
found  at  the  time  of  landing,  that  the  apporticmmnt,  or  average  of  the  lofj 
muft  be  calculated;  and  not  upon  the  grofs produce  of  die  fak  ;  which," 
although  ver)'  prejudicial  to  the  ajfurcd,  Aviien  the   freight  and  charges  arci 

large,   is  fomctimes   crroneoufly  done. 1   ha\e,   indeed,   often   heard   ir 

ftrenuoufly  infilled  upon  that  the  right  method  is,  ift.  to  deduft  the  o-r<2/i' 
produce  of  the  goods  damaged,  from  the  gro/s  produce  of  the  fame  goods  if 
found  ;  and  then  to  apportion  the  difference,  or  lols,  uport  what  M'ould  have 
been  the  grofs  produce  of  the  whole  of  the  goods,  if  undamaged : — but,  not 
onlv  the  cafe  of  Eoyjield  v.  Brozon  (fee  C&rnJ  ■  (hews  that  the  tifage  then  A\'as, 
as  it  flill  is  (notwithftanding  there  may  be  fome  inflances  to  the  contrary) 
firft  to  deduft  the  freight  and  charges  from  the  grofs  produce  of  damaged 
goods ;  but,  in  faft,  if  the  average  be  calculated  according  to  the  grofs 
produce,  and  not  on  the  net  proceed,  the  aflured  could  never  be  indemnified, 
but  mufl  always  be  fubje6t  to  fome  lofs,  although  he  fhould  be  fully  infured 
(even  including  by  a  valuation  in  the  policy  the  profit  of  the  market)  when- 
ever his  goods,  or  any  part  of  them,  fhould  arrive  damaged  : — becaufe  he 
would  be  made  himfelf  to  contribute  towards  a  quantum  of  lofs  which  he  has 
aftually  fullained  (between  the  commencement  and  end  of  the  underwriter^ 
rifque)  for  the  amount  of  the  duties,  freight,  and  charges,  which  is  an  addition 
to  the  value  of  the  goods,  accrued  to  and  payable  on  them,  after  that  rifque 
is  ended  ; — and  which  additional  value  was  no  part  of  tlie  interejl  or  value 
of  the  goods  when  in  rifque  during  the  voyage,  until  the  time  of  landincr ; 
never  could  be  infured,  nor  liable  to  lofs  ;  and  confequently  it  would  be 
abfurd  and  unjuft  that  it  fhould  contribute  in  cafe  of  average  : — it  mufl 
tlierefore  be   deducted  from  the  amount  of  the  grofs   fales,   in  which  it  is 

included,  before  a  right  apportionment  can  be  made. It  appears,  by  the 

24th  cafe,  in  1  ^lagcns,  284,  that  the  Loud.  AJf.  Co.  in  1750,  duly  confidered 
this  point,  correfted  the  calculation  of  an  average  which  had  been  flated 

upon  the  grofs  produce,  and  allowed  it  to  be  made  upon  the  net  proceed. 

If  the  freight  and  charges  fhould  be  equal  to  the  grofs  produce  of  goods 
damaged,  there  would  clearly  be  a  total  lofs  to  the  infured,  who  might 
undoubtedly  abandon  them  to  the  infurers ;  and  a  total  lofs  is  always  due 
from  them  (as  in  die  aforefaid  cafe  of  Boyfield  v.  Brozon)  when  the  grofs 
produce  of  damaged  goods  doth  not  exceed  the  freight  and  charges : — but, 
in  fuch  cafes,  if  adjullments  were  made  according  to  the  grcfs  produces, 
inftead  of  the  net  proceeds,  the  infured  would  alwavs  rtc<t\\tfiort  (fometimes 
very  confiderably  fhon)  of  a  total  lofs ;  notwithftanding  he  had  paid  a 
premium  to  be  fully  indemnified  as  far  as  the  fum  he  had  infured  ;  and  would 
be  in  a  worfe  fituation  than  if  his  goods  had  gone  to  the  bottom  of  the  fea. 

6.  By  parity  of  reafoning,  wlien  goods  arrive  damaged,  and  there  is  a 
ftipulation  in  the  policy  for  a  return  of  premium  to  be  made  for  convoy,  or 
other\\'ife,  "  if  the^'  arrive ;  "   fuch  return  muft  firft  be  deduced  from  tlie 

amount 


AVERAGE.  27 

amount  of  the  invoice  covered,  or  valuation  in  the  policy,  before  the  average 
can  be  truly  regulated : — for,  although  fuch  premium  is  included  in,  and 
makes  a  part  of  the  interejl,  in  cafe  of  a  total  lofs  ;  yet  it  is  only  conditionally 
fo,  in^  that  cafe,  and  is  not  a  part  of  the  intereft,  in  cafe  of  arriving ; — and 
therefore,  if  the  quantum  of  loft  be  taken,  and  the  average  be  calculated, 
upon  the  amount  of  the  intereft  before  the  return  of  premium  be  dedufted, 
the  underwriter  would  be  wronged^  by  paying  the  amount  of  that  return  (not 
only  as  a  return,  but  alfo)  as  a  part  of  the  quantum  of  lofs  : — and  yet  this 
is  often  erroneoufly  done. — As  for  inftance  :  fuppofe  the  invoice  covered 
(at  20  percent,  with  return  of  10  per  cent,  for  convoy,  if  arrives)  loool. 
which  fum  muft  be  paid  in  cafe  of  total  lofs  ; — ^but  the  goods  arrive  damaged, 
and  produce  net  500I. — Deduft  this  fum  from  lOOol.  (gain  or  lofs  of  market 
not  confidered  in  this  inftance)  and  call  the  lofs  500I.  to  which  add  lool. 
return  of  premium,  and  the  underwriters  will  then  unjuftly  pay  60I.  percent. : 
but,  if  the  return  of  premium  lOol.  be  firft  dedufted  (as  it  ought)  the  interejt 
in  cafe  of  arrival  is  but  gool.  the  lofs  400I.  which  together  ^vith  the  return 
of  lOol.  make  only  50I.  per  cent,  due  from  the  underwriters  on  lOOoI.  infured. 

7.  In  ftating  an  average  on  goods,  regard  (liould  alfo  be  had  to  what 
deductions  ought  to  be  made  from  their  invoice  amount  covered  for  draw- 
backs, bounties,  and  other  allowances  at  the  Cuftom-Houfe,  on  exportation  ; 
alfo  for  difcounts,  and  abatements  of  duties,  &c.  on  importation,  which  are 
fometimes  confiderable  on  damaged  goods ;  and  for  prompt  payment  on 
fales,  together  with  the  ufual  leakage,  waftage,  &c. : — it  ftiould  likewife  be 
confidered  whether  the  damaged  goods  (although  the  whole  of  the  goods 
which  were  loaded  may  be  delivered)  are  increafed  or  diminiflied  in  weight,  or 
quantity,  by  means  of  the  fea-xoater,  as  hemp,  fugar,  &c. ; — the  true  weights 
or  quantities,  as  ftiipped  and  landed,  fliould  be  difcovered  and  compared  ; 
and  the  feveral  differences  of  qualities  attended  to,  particularly  in  large 
parcels  or  cargoes  of  goods  of  the  fame  denomination,  in  order  to  find  on 
xohich  qualities  the  damage  may  have  happened : — for,  unlefs  all  thefe  cir- 
cumftances  be  adverted  to,  as  the  cafe  may  require,  the  average  will  be 
ftated  erroneoufly,    and  the  infurer  will  pay  in  fome  inftances  more,  in  others 

\t{^,  x\\7in  \h&  true  proportion  o{  l\\e.  \ok. Malynes,  in  his   Lex  Merc.  115, 

very  judicioufly  advifes  infurers  "  to  be  provident  in  contributions  and 
averages,  to  anfwer  for  no  more  than  is  their  due  to  pay,  and  to  have  an 
infpeftion  of  the  papers.  " 

8.  Ik  goods  arrive,  but  left'ened  in  value,  through  damages  received  at 
fea,  the  nature  of  the  contract:  as  an  indemnity,  fpeaks  demonftrably  that  it 
muft  be  by  putting  the  merchant  in  the  fame  condition  (relation  being  had  to 
the  prime  coft  or  value  in  the  policy)  which  he  would  have  been,  had  the 
goods  arrived  free  from  damage  ;  i.  e.  by  paying  fuch  proportion,  or  aliquot 
part  of  the  prime  cojl  or  value  in  the  policy,  as  correfponds  with  the  proportion 
or  aliquot  part  of  the  diminution  in  value,  occafioned  by  the  damage. — The 
duty  accrues  upon  the  (hip's  arrival  and  landing  her  cargo. — Ld.  Mansfield, 
in  Lexm  v.  Rucker. 

9.      I   WILL 


28 


A    V    E     R     A    G     E. 


g.     I   WILL  illuftrate  what  has  been  faid,    by  way  of  example;    which 
may  ferve  as 

A   GKxiHAL,  or  fnnrlamcntal  rule,  [or  Jlaling  every  average,   or  partial 

lofs,   on  goods  : 

A  merchant  Infurcs  a  parcel  of  goods  to  the  amount  of  looh  ;  which  fum 
is  either  vakied  in  the  poHcy,  or  is  the  amount  of  his  invoice  covered  : — ■ 
Query,  what  does  the  infurer  agree  to  make  good  to  the  merchant,  in  cafe  of 
average  or  partial  lofs  ? — Anfwer,  fuch  a  proportion  of  the  value  of  the  lofs, 
or  damage,  which  the  goods  have  fullered,  as  the  invoice  covered,  or  valuation 
in  the  policy,  bears  to  the  value  of  the  fame  goods,  if  they  had  arrived  found. 

The  next  quellion  is,  how  to  find  out  xohat  proportion  or  parts  of  the 

goods,  are  damaged  or  deflroyed  ? — and  in  cafes  where  the  goods  are  of  fuch 
a  nature,  that  the  damaged  may  h&feparatcd,  and  is  dillinft  from  the  found 
part,  it  appears  immediately : — fuppofe  the  interell  confifted  of  ten  hogfheads 
of  tobacco,  and  either  one_  of  them  was  wholly  deilroyed,  or  the  tenth  part 
of  the  whole  quantity  was  perifhed  and  cut  off  ;  the  lofs  is  feen  direftly  to  be 
lo  per  cent,  upon  the  intereft,  neither  more  nor  lefs  ;  whether  the  found 
tobacco  produced  net  12I.  or  but  81.  per  hogfhead; — and  fo  in  proportion  for 
a  larger  or  fmaller  part  loft,  perilhed,  or  cut  off: — but  on  goods  where  the 
damaged  part  cannot  be  feparated  from  the  found,  fuppofe  linens,  the  only 
way  of  finding  out  the  lofs  on  the  damaged  part  is  by  the  net  proceed  of  the 
fales ;  for  whatever  the  difference  between  the  net  proceed  of  the  found,  and 
of  the  damaged,  may  be  per  cent,  fo  much  per  cent,  is  loft  on  the  invoice 
covered,  or  valuation  in  the  policy ;  and  is  to  be  made  good  by  the  infurer, 
be  the  net  proceed  more  or  lefs  than  the  invoice  covered,  or  valuation  in  the 

policy. Proof  : — Suppofe  10  hogflieads  of  tobacco  are  infured,  valued  at 

lol.  per  hogfhead,  lool ;  1  hogfhead  is  loft;  on  the  amount  in  quantity  of 
1  hogfhead  the  lofs  will  be  10  per  cent,  on  the  intereft,  whether  the  net  proceed 
of  the  tobacco  gives  lofs  or  profit : — for,  though  the  merchant's  g  hogflieads, 
which  are  not  damaged,  fliould  produce  net  lOol. ;  the  infurer  cannot  objeft, 
you  infured  lOol.  your  tobacco  has  yielded  you  net  lOol.  and  therefore  you 
have  no  demand  :  this  would  be  availing  himfelf  of  the  merchant's  projit  to  pay 

the  fea  lofs. Again  ;    fuppofe  linens  (where  the  found  cannot  be  feparated 

from  the  damaged) — valuation^  or  invoice  covered  lOol, — 


At  a  gaining  market  they  would 

produce  net,  if  found,  iT^so 

But  being  damaged  produce,  net    108 


The  lofs  on  1 20I.  is 


/'12 


— If  i2ol.lofe  12I. — lOol.  lofes  lol. 


At  a  lofing  market  they  would 

produce  net,  if  found,  £%o 

Being  damaged  produce,  net  72 


The  lofs  on  80I.  is  /'8 

— If  80I.  lofe  81. — lOol,  lofes  lol. 


In  both  inftances  the  average,  or  damage,  is  one-tenth  part,  or  10  per  cent. 

10.     The 


AVERAGE. 


29 


10.  The  aforefaid  flatings  prove  that  this  is  the  only  method  of  fetding  the 
average  (where  the  damaged  cannot  be  feparated  from  the  found  part)  without 
prejudice  or  benefit  to  the  adurer,  by  the  gain,  or  lofs  of  markets  ;  for,  other- 
wife,  in  the  firfl  inftance,  the  aflfurer  would  be  a  lofer  2I.  and  in  the  latter  a 
gainer  2I.  by  the  net  proceed  of  the  fales  ; — but  by  the  foregoing  method  of 
Hating  he  pays  exaftly  fuch  proportion  as  the  goods  have  fufiered  diminution 
in  value  hy  fea-daviage  ;  viz.  one-tenth  part,  at  the  rate  of  the  valuation  in 
the  policy,  or  invoice  price  covered  ;    and  this  invariably ;    which  is  the  true 

meaning  of  the  obligation  he  enters  into  by  the  policy. It  is  a  decided 

point,  that  an  infurer  has  nothing  to  do  with  any  conjunfture  of  the  market, 
ox  profit  on  the  goods,  nor  ought  to  contribute  more  in  the  calculation  towards 
the  lofs  on  them,  than  what  they  coft,  or  were  valued  at  in  the  policy,  or  what 
he  has  infured  upon  them; — (as  the  Ordin.  of  Hamb.  tit.  21.  art!  14,  very 
juftly  expreffes,  viz.  "  If  it  fhould  appear  that  on  a  public  fale  there  was  a 
furplus  of  any  profit,  and  advance  above  the  coft,  then  the  proprietor  is  to 
bear  his  proportion  of  the  average  of  fuch  advance  ;") — for,  otherwife,  the 
underwriter  would  become  an  adventurer  with  the  merchant,  a  fiiarer  in  his 
profits,  and  an  infurer  of  his  loffes. — See  Market. 

-  11. 'ilN  all  cafes  o^ -v  luation  in  the  policy,  whether  at  a  fpecified  fum,  or 
iat 'the  Turn  infured,  and  whether  on  fliip,  freight,  or  goods,  the  policy  mufl  be 
opened  if  there  be  average  ;  which  mufh  be  calculated  upon  the  true  value  or 
net  proceed  of  the  goods,  and  upon  the  triLe  value  of  the  fhip,  or  freight : — 
for,  fuppofe  500I.  only  infured,  the  goods,  or  fliip,  valued  at  that  fum,  or  at 
the  fum  infured  ;— fuppofe  the  true  value  of  the  fhip,  or  net  proceed  of  the 
goods,  if  they  hacl  arrived  found,  at  the  time  of  landing,  loool. ; — and  by  fea 
damage  there  is,  in  either  cafe,  a  lofs  of  250I. : — 'tis  plain  the  affured  runs  a 
rifqueof 500I.  himfelf,  and  would  iofe  fo  much  in  cafe  of  total  lofs;  and 
therefore  muff  pay  average  in  proportion, — viz.  25I.  per  cent.  ;  otherwife  the 
infurers  of  tlie  500I.  (if  the  average  be  calculated  on  that  fum  only,  fimilar 
inffances  of  which  I  have  often  feen^  efpecially  on  flips,  undervalued  in  the 
policy)  would  pay  unjuftly  50I.   per  cent. '  inftead  of  25I.  per  cent,   and  the 

affured  fave  his  premium    on  500I.  and  fuffer  no  average  lofs. On  the 

contrary,  in  cafe  of  fhipwreck  and  falvage,  the  infured  (if  there  be  an  under 
valuation)  is  for  the  fame  reafon  entitled  to  his  proportion  of  the  net  falvage  ; 
as  being  his  own  infurer  for  the  fum  uninfured,  or  undervalued  in  the  policy. — 
In  cafe-  of  total-  lofs'y  the  fum  infured  mufl  be  paid  according  to  the  valuation 
in  the  policy,  whetherit  be  over  or  under  the  real  value  •  (unlefs  the  valua- 
tion be  exorbitantly  high,  and  done  evidently  with  intent  to  defraud) ;  the 
premium  having  been  paid  on  fuch  valuation,  to  recover  fo  much. 

12.     Upon  wool,'flax,  fugar,  and  hemp,  they  have  at  Amfterdam  for  fome 
year^   pafl:  ^agreed  a'mong   themfelves  not  to  infure,  excepty?'f(?  of  a\'erage 

under  itcn  ^tx  cQr\X..—Ricard' s  Negoce  d'  Aiiifl. At  the  foot  of  our  policies, 

in  London,  is  printed  the  following— A^.  ^.  Corn,  fifh,  fait,  fruit,  flour,  and 
feed,  ar-e  WarrantedyiT<;  from  average,  unlefs  general,  or  the  fliip  be  flranded. 

I  — Sugar, 


JO 


A    V    E    R    A    G    E. 


— Sugar,  tobacco,  hemp,  flax,  hides,  and  fkins,  are  warranted  free  from 
avera<ye  under  5I.  per  cent. — and  all  other  goods,  alfo  the  fliip  and  freight, 
are  warranted /w  of  average  under  3I.  percent,  wn/g/}  general,  or  the  Ihip 
be  flrandcd. — See  U)ilejs,  for  the  conflruftion  of  this  word. 

IQ.  In  the  polities  of  infurance,  for  fhort  voyages,  in  the  Mediterranean, 
it  is  very  connnonly  flipulated  that  the  infurers  (hall  be  free  from  average  ; — • 
according  to  Cnfa  Regis,  dfc.  47,  n.  4,  this  claufe  was  invented  on  occafion 
of  the  linall  veffels  employed  in  tiie  tranfport  o{ provifons  from  and  to  places 
near  to  each  otlier.  As  thefe  are  goods  very  fubjeft  to  average  from  the 
lead  bad  weather,  and  as  by  reafon  of  the  fhort  pafTage,  they  ufually  load  the 
veffels  beyond  what  they  can  conveniently  carry  with  fafety,  one  may  eafily 
conceive  how  frequent  muft  be  the  difputes  about  the  nature  and  caufe  of 
averages  in  this  fort  of  navigation ;  and,  to  prevent  thofe  difputes,  they 
contrived  the  claufe  yiY<?  of  average. — We  fee  the  fame  now  in  ufe  almoll 
every  where  with  refpeft  to  goods  in  the  like  predicament,  ?isfalt,  &.C.  ;  but, 
becaufe  this  claufe  is  dangerous,  infidious,  and  naturally  unjuft,  for  the 
infureds,  the  Italian  authors  think  it  ought  not  to  extend  to  extraordinary 
averages  ;  Hill  lefs  to  a  jettifon  made  to  avoid  fhipwreck  ;  but  that  the  infurers 

ought  to  anfwer  for  it,  deeming  it  a.  fani-naifragium. — Targa  230,  n.  18, 

However,  at  Marfeilles,  and  at  Aix,  they  have  adjudged  that  this  claufe  (belters 
the  infurers  from  all  averages  of  whatfoever  nature  they  may  be,  unlefs  there 
fhould  be  room  for  an  abandonment ;  and,  in  this  cafe,  they  admit  the  alTured 
to  demand  reparation  of  the  damage  by  way  of  average : — ^but  if  there  has 
been  no  real  and  effective  fhipwreck,  and  that  the  fliip  or  goods,  though 
Ilranded,  have  been  got  off,  and  put  to  fea  again,  the  charges  attending  the 
fame,   howfoever  great,  are  confidered   only  as  average,   from   which    the 

infurers  are  exempt  by  the  faid  claufe. But,  there  is  danger  that  this  Ihould 

induce  a  captain  of  a  fliip  to  commit  a  crime,  in  not  troubling  hirafelf  to 
get  her  off,  or  prevent  a  fhipwreck,  in  order  to  have  a  recourfe  to  the  infurers 
lor  a  total  lofs. — 2  Valins  Comm.  113,  114,  115. 

i.[.  In'  time  of  roar,  the  rifque  of  average  is  hardly  confidered,  the  greater 
peril  abforhs  the  lefs ;  but  in  time  of  peace,  this  rifque  is  deemed  of  greater 

charge  to  infurers  dian  even  that  of  total  loffes. ^In  France,  they  have 

calculated  the  annual  /(9/>-  of  fliipping,  during  eighteen  years  of  peace,  at 
one  (hip  in  iSo; — and  the  averages  have  been  eflimated  at  double  that  lofs, 
upon  tiie  like  number. — DicL  du  Cttoyen.  Tit.  Avaries. 

15.  In  cafes  of  damage,  and  repairs  to j%z/»j,  the  general  cuflom  in  England 
is,  for  the  infurers  to  pay  two-thirds  of  the  amount  thereof,  and  one-third  to 
be  borne  by  the  owners,  in  confideration  of  the  neto  work  and  materials  in 

place  of  the  old. When  things  axe  loll,  for  which  the  infurers  are  liable 

lo  pay,  the  queftion  naturally  avifes,  how,  and  at  Avhat  value,  they  ought  to 
make  fatisfadion ?  For  the.  value,  tliey  had  at  the  place  from  whence  the 
infurance  commenced  and  the  premium  was  paid,  might  not  be   fo  much  as 

the 


AVERAGE.  31 

the  purchafe  of  others  in  lieu  of  them. — Our  opinion  in  this  cafe  is.  that  the 
infurers  fhould  not  be  refponfible  for  the  whole  of  what  the  replacing  them 
may  toft ;  but  that  a  part  of  it  ought  to  be  borne  by  the  oxoners  of  the  fhip, 
in  proportion  to  what  it  could  be  proved  they  would  be  benefited  by  the 
voyage ;  or  what  their  freight  exceeded  the  outfet  infured  in  the  fhip's 
valuation. — Suppofe  a  new-built  fliip  of  600  tons  bound  from  London  to  the 
Eaft-Indies  amounts,  wath  all  ftores,  provifions,  and  advanced  money  to  the 
failors,  in  the  whole,  as  fitted  for  fea,  to  looool.  and  is  infured  in  full  for  that 
fum  :  in  her  return  ihe  happens  to  lofe  her  foremaft  and  bowfprit,  by  crowding 
fail  upon  a  lee  fhore,  which  to  replace  on  the  fpot,  coft  1500I.  though  in 
London  they  might  have  been  bought  for  500I.  We  are  of  opinion  that  in 
this  cafe,  if  the  homey?-«^A^  on  goods  aboard  amounted  to  8000I.  there  mio-ht 
be  dedufted  for  viftualling  and  wages  of  60  hands  for  6  months  wantino-  to 
accomplifh  the  voyage,  and  other  charges,  1200I. — Rifque  for  the  owners  6800I. 

The   moft  equitable  way  then  would  be,  to  make  the  infurers  bear  for 

lOOOol.  (892I.YI-I) — the  owners  for  6800I.  (Soyl.YVV) — of  the  above  1500I. 

Several  arguments  may,  however,  be  alleged,  to  excufe  the  infurers  from 

being  liable  for  more  than  the  value  of  the  500I.    which  the  maft,  &c.  would 
have  coft  in  London. — 1  Magens,  54. — See  Repair, 

16.  Ave  r  AG  e  is  to  be  paid  as  often  as  it  happens,  either  once  or  oftener,  al- 
though the  ftiip  afterwards  ftiould  be  loft  in  the  fame  voyage, — Ordin.  of  Copenh. 

17.  The  numerous  litigations,  and  other  mifchiefs,  which  continually 
happen  through  the  total  want,  in  England,  of  commiftioners,  or  other  perfons 
duly  qualified,  and  appointed  by  authority,  as  in  Amfterdam,  Hamburah, 
France,  and  other  countries,  for  the  fettling  of  affairs  relating  to  infurances 
and  averages,  have  been  amply  defcribed  and  deplored  in  the  courfe  of  the 
Prelim.  Difc.  prefixed  to  this  work : — and,  as  a  remedy  for  thofe  enormous 
evils,  I  refer  the  reader  to  p.  20,  of  that  Difcourfe,  for  the  heads  of  my  propofed 
Plan  of  an  Amicable  Judicatory  ;  and  to  p.  35,  for  that  of  an  Affociation,  for 
the  deteftion,  &c.  of  frauds. — See  alfo  Chamber  of  Affurance,  Court  Merchant. 

i8.  For  more  particular  information  and  inftruftions,  adapted  to  the 
various  circumftances  liable  to  occur  in  matters  of  average,  fee  Prelim.  Difc. 
9,  42,  43,  45,  49,  64.  Abandonment,  Abatement,  Accident,  Adjiflment,  Africa, 
Anchor,  Barratry,  Bottomry,  Broker,  Cable,  Capture,  Commodi.ty,  Contribution, 
Cordage,  Corn,  Cutting,  Damage,  Declaration,  Document,  Embezzlement, 
Free  of  Average,  Freight,  General  or  Grofs  Average,  Goods,  Greenland,  Hemp, 
Intereft,  Leakage,  Market,  Mafler,  Negligence,  Particular  Average,  Pccife, 
Perifhable  Commodities,  Petty  Average,  Policy,  Privateer,  Proof,  Provifions, 
Ranfom,  Rats,  Recapture,  Regulation,  Repair,  Refpondentia,  Rigging,  Rifque, 
Running  Foul,  Sail,  Salvage,  Ship,  Shipwreck,  Stowage,  Stranding,  Sugar, 
Theft,  Ufage,  Valuation,  Wages,  Wear  and  Tear. 

BAIL. 


B. 


BAIL. 

i.   "TT  THERE  the  a6Hon  is  only  for  damages,  there  the  party  is  not  held 
'   »      to  bail,  for  there  is    no   certain  fum   for  which  caution  can  be 
afcertained. — Gilb.  H.  C.  B.30. — 1  New  Abr.  209. 

2.     See  Adjujimcnt ,  Policy. 

BANKRUPT. 

1,  T>Y  Stat.  19  Geo.  2.  c.  32.  f.  2. — Whereas  merchants  and  other  traders 
-*-'  frequently  lend  money  on  bottomr)',  or  refpondentia,  and  in  the 
courfe  of  their  trade  frequently  caufe  their  fliips  and  vedels,  and  the  goods  and 
merchandifes  loaded  thereon,  to  be  infured ;  and  where  commiffions  ot 
bankruptcy  have  iflued  againfl  the  obligor  in  fuch  bottomry  or  refpondentia 
bond,  or  the  underwriter  or  afllirer  in  fuch  affurance,  before  the  lofs  of  the 
fliip  or  goods,  in  fuch  bond  or  policy  of  infurance  mentioned,  hath  happened, 
it  hath  been  made  a  queflion,  whether  the  obligee  or  obligees  in  fuch  bond,  or 
the  affured  in  fuch  policy  of  infurance,  fhould  be  let  in  to  prove  their  debts, 
or  be  admitted  to  have  any  benefit  or  dividend  under  fuch  commiffion,  which 
may  be  a  difcouragement  to  trade  ; — -for  remedy  whereof  be  it*  enafted  that, 
from  and  after  the  29th  day  of  Oftober  1746,  the  obligee  in  any  bottomree, 
or  refpondentia  bond,  and  the  allured  in  any  policy  of  infurance,  made  upon 
valuable  confideration,  bona  fide,  {hall  be  admitted  to  claim  ;  and  a/JJ^r  the 
lofs  or  contingency  (liall  have  happened,  to  prove  their  debt  and  demands 
in  rcfpeft  of  fuch  bond  or  policy,  in  like  manner  as  if  the  lofs  or  contingency 
liad  happened  before  the  iffuing  of  the  commifiion  of  bankruptcy  againfl  fuch 
obligor  or  infurer ;  arid  fiiair  have  a  proportionable  dividend  of  fuch 
bankrupt's  eftate ; — ^nd  eX'^iy  perfon  againfl  whom  any  commiffion  of 
bankruptcy  fliall  be  awarded,  f!iall  be  difcharged  of  the  debt  owing  on  every' 
fuch  bond  and  j^o/zVy  of  infurance',  and  "fliall  have  the  benefit  of  the  flatutes 
againfl  bankrupts,  in  like  manner  as  if  fuch  lofs  or  contingency  had  happened, 
Jmd  the  money  due  in  refpeH  thereof  ftad  become  payable,  before  the  iffuing 

of  fuCh 'commiffion. 

■■.»,■. 

2.  Remark'. — ^Although  this  a6l  was  occafioned  by  the  quefl:ion  therein 
mentioned,  which  fuWiflred  befoi-e-the'paffing  of  it-,  yet  it  can  hardly  be 
doubted  that,  by  the  words  in  the "ertafting  part  of  the  claufe,  "  the  afrure4  in 
in  any  policy  of  infurance,"  and  "  fliall  be  df charged  from  the  debts  on  every 
^\\(A\  police  of  infurance,"  the  legiflalure  meant,  not  a  partial,  but  a  full  relief; — 
•-^     ^    ^^     -  ^'  that 


II 


BARGAIN.  33 

that  the  afTured  fliould  be  admitted  to  claim  and  prove  on,  and  that  tlie 
bankrupt  fhoidd  be  difcharged  from,  all  poHcies  of  infurance,  made  on 
valuable  confideration,  bona  fide : — but  the  courts  have  limited  the  con- 
ftru6lion  of  the  aforefaid  words, "'  any"  and  "  every  policy,"  to  fuch  policies  only 
as  are  on  "  fliips  and  veffels,  and  on  goods  and  merchandifes  loaded  thereon  ;" 
— fo  that  a  bankrupt  infurer,  notwithftanding  he  may  obtain  his  certificate,  ftill 
remains  liable  to  pay  the  lofTes  which  may  happen  after  the  ilfuing  of  the 
commilfion,  upon  all  policies  which  he  may  have  fubfcribed  before,  whether 
on  lives,  or  any  other  event  (except  as  above  mentioned) : — 'which  is  undoubt- 
edly very  hard  ; — and  it  was  a  great  overfight,  in  making  the  aft  of  14  Geo.  3- 
concerning  infurance  on  lives  and  other  events,  to  have  omitted  the  inferting 
a  claufe  fimilar  to  that  in  the  above  recited  aft  of  19  Geo.  2  ;  feveral 
underwriters  of  policies  on  lives,  which  dropped  after  commiffions  iffued 
againft  them,  having  been  fued,  and  obliged  to  pay,  for  loffes  on  fuch 
policies,  after  obtaining  their  certificates. 

3.  In  France,  if  an  infurer  fails  whilft  the  rifque  is  fubfifting,  the  infured 
has  a  right  to  demand  the  cancelling  of  the  policy ;    unlefs  good  fecurity  be 

offered  by  the  infurer  or  his  creditors. — 2  Valins  Covim.  66. The  alTured 

may  infure  the  folvability  of  the  infurers. — Ordin.  of  France. 

4.  See  Bottomry,  Infurer,  Lives,  Reinfurance,  Refpondentia. 


B     A     R     B     A     R     Y. 

1.  ''  j  ^  H  E  importance  of  remaining  in  peace  with  the  flates  of  Africa  is  great, 
^  becaufe  England  has  much,  and  they  have  no  trade  to  lofe  ;  yet, 
when  by  coming  to  a  rupture  they  can  make  much  more  by  captures,  than  is 
given  in  yearly  prefents  to  the  flate,  their  Deys  often  cannot  withfland  the 
clamours  of  their  people,  but  are  obliged  to  break  with  fuch  nation  as  they 
pleafe :  neverthelefs,  infurers  may  always  underwrite  at  a  lower  premium 
upon  Englifh  fhips  than  on  any  other,  as  we  are  more  in  the  way  (from 
Gibraltar  and  Minorca)  to  take  their  cruizers. — 2  Mag.  713. 

2.     See  Algiers,  Treaty,  Turkey. 

BARGAIN. 

1.   "O  E MARKS,  from    Ricard's  Negoce  d'  Amflerdam,   on  bargains   at 
-*-^  option  in  goods,  for  premiums  or  infurances,  to  have  the  refufal  of 

goods  at  a  certain  price. Thofe  that  buy  on  a  certain  bargain,  cannot 

know  what  profit  or  lofs  they  are  to  have  on  what  they  have  fo  bought  until 
they  refell;  and  the  price  of  goods  may  rife  or  fall  much  at  the  expiration  of 
contrafts  ;  fo  that  they  may  chance  to  lofe  confiderably,  when,  at  the  time  of 
making  the  contraft,  they  expefted  to  have  made  a  great  profit : — prudent 

K  people 


34  BARGAIN. 

people  therefore,  who  do  not  chufe  to  rifque  a  great  deal  on  goods  which 
they  think  mvift  rife  or  fall  conliderably,  do  not  care  to  buy  nor  fell  on  a 
certain  bargain,  but  chufe  rather  to  give  an  agreed  fum  to  fomebody  who, 
in  confideration  thereof,  obliges  himfelf  to  deliver  or  receive  the  goods  in 
qucftion  at  an  appointed  time,  and  at  a  limited  price,  if  they  think  proper  to 
infifl:  on  his  delivering  or  receiving  them  ;  on  condition  that  if,  at  the  appointed 
time,  they  do  not  requeR  the  fulfilling  of  the  contraft,  the  fum  given  will  be 
loft,  and  the  contraft  void. — The  fum  given  is  called  premium,  and  the 
liberty  that  the  giver  of  the  premium  has  to  have  the  contraft  fulfilled  or  not, 
is  called  option,  and  the  contrafts  are  made  to  the  bearer. — ^Here  follows  a 
copy  of  the  firft  of  thofe  contrafts ; 

I  THE  underwritten  confefs  to  have  received  of  the  bearer  the  fum  of  150  guilders 
current  money,  againft  which  I  engage  and  bind  myfelf  to  deliver    from    henceforth  at 
any  time  until  the  that  day  inclufive,  loooolbs.  of  good  and  deliverable 

Dutch-made  ftarch,  at  the  price  of  16  guilders  current  money  for  every  loolbs.  to  be  paid 
in  ready-money,  and  as  cuftomary  ;  but  if  the  bearer  of  this  does  not  give  me  notice  that 
I  am  to  deUver  him  the  faid  loooolbs.  of  Starch,  between  this  day  and  the 
that  day  inclufive,  I  fliall  be  free,  and  difcharged  of  this  prefent  contra£l,  and  the  premium 
will  be  mine,  and  I  fliall  never  be  obliged  to  reftore  the  fame,  nor  fhall  ever  any  body  be 
entitled  to  reclaim  the  fame.     Signed  &c.  G.  V.  H. 

Thefe  contrafts,  either  to  receive  or  deliver,  may  be  had  ready  printed  of 
the  ftationers  at  Amfterdam,  and  the  blanks  need  only  be  filled  up  with  the 
fum  given,   the  quality  and  quantity  of  the  goods,   the  price   and  time  of 

delivery  or  receiving.-^^ The  intereft  of  him  who  gives  the  premium  for 

delivery  \&,  that  the  goods  fliould  rife ;    and  the  intereft  of  him  who  gives  the 

premium  for  receiving  is,  that  the  goods  fhouldy^//. Thefe  contrafts  are 

fold  and  refold  at  pleafure,  without  any  indorfement  or  guaranty  of  thofe  who 

fell,   when  they  are  figned  by  good  and  known  people. The  takers  of 

premiums  very  often  engage  themfelves  to  much  more  than  they  think,  for 
there  happens  fuch  unforefeen  accidents  in  trade,  that  the  goods  they  bind 
themfelves  to  deliver  or  receive,  rife  or  fall  from  25  to  30  per  cent,  during 
the  time  of  their  engagement :  befides,  there  are  a  thoufand  artifices  praftifed 
in  this  way  of  traffick,  and  very  often  even  rogueries  ;  fo  that  whoever 
launches  into  it  too  far,  is  almoft  fure  to  be  ruined. — It  is  a  great  deal  better 
to  give  than  to  take  premiums  ;  becaufe  he  that  gives  the  premium  is  under  no 
engagement,  and  lofes  nothing  more  than  his  premium  in  cafe  the  goods  do 
not  arrive  to  the  price  he  imagined. 

2.  On  certain  bargains,  as  well  as  on  premiums,  are  negotiated — The 
taft4ftdia  Company's  ftock  of  the  chamber  of  Amfterdam  ; — The  Weft4ndia 
company's  ditto-; — The  Englifh  Eaft-India  Company's  ftock,  although  it  be 
frdhibited  &X.  Amfl:erdam  to  fell  any. — Contrafts  are  likewife  very  frequently 
Hfe^^Otiarted  there  in  the  fame  manner  for  moft  forts  of  goods,  when  they  either 
begin  to  grow  fcarce,  or  that  there  is  great  plenty  of  them,  provided  the  fame 
-cto  be  rafc€^:^ained  at  a  certain  value  or  goodnefs. 
■  '  3.    Such 


BARRATRY.  35 

3.  Such  fpeculative  infurances  were  made  to  a  large  amount  in  London, 
in  1772,  by  Sir  George  Colebrooke,  and  his  affociates,  on  the  rife  of  the  price 
of  alum  to  30I.  per  ton,  within  fix  months;  which  they  attempted  to  woJio- 
polize,  and  thereby  raife  the  price  as  they  pleafed,  and  alfo  to  recover  from 
the  infurers ; — ^but  the  fcheme  was  feen  through  and  defeated,  to  the  ruin 

of  the    fchemers, Similar  infurances  are  alfo  frequently  made  on  events 

(fuch  as  hoftilities,  war,  peace,  &c.)  which  may  occafion  a  rife  or  fall  of  the 
price  of  llocks,   &c. : — but  fee  Stat.  7  Geo.  2.  c.  8.  and  14  Geo.  3.  c.  48. 

4.  See  Commodity,  Event,  Inter eji,  Stocks,  Wager. 


BARRATRY. 

1.  T  TARIOUS  are  the  ideas  entertained  with  refpeft  to  the  full  import  of 
'      this  term,  and  the  rifques  which  infurers  are  fubjeft  to  by  the  words 

"  barratry  of  the  majler  and  mariners,  "  Avhich  are  in  our  policies. 1  fhall 

therefore  colleft  the  feveral  definitions  of  the  term  barratry,  as  they  appear  in 
the  moft  efteemed  commercial  writers,  and  then  ftate  the  dodrines  which  our 
courts  have  eftablilhed  concerning  it. 

2.     Barratry   fignified  formerly  malv erf ation,  fraud. — DiEl.  du  Citoyen, 
-It  is  a  malverfation,  or  fraud,  of  the  mafter,  whether  by  (deguifement) 


alteration   of  the  goods,  or  (fauffe  route)  taking  a  wrong  courfe. — 5.  Ricard. 

It  fignifies  the  ftealing,  embezzling,  or  any  ways  altering  of  merchandifes, 

by  the  mafter  or  company  of  a  (hip  ;  and,  in  general,  all  the  tricks,  frauds,  or 
mal-praftices,   which  they  often  ufe,  in  order  to  defraud  the  owner  of  the 

fhip,    cargo,    or  other  perfons    concerned   in   it. — Savary. It   fignifies 

malverfation,  or  deceit,  by  a  captain  or  mafter  of  a  merchant-veffel,  in  what 
concerns  the  quality  or  quantity  of  the  merchandifes. — Denifart's  Colleftion 
of  new  Decifions. — (The  definition  is  general,  malverfation,  or  deceit ; 
though  the  inftance  is  particular,  as  being  one  of  the  moft  common  and 
obvious ;  and  he  refers  for  the  fenfe  he  gives  to  a  decree  of  the  6th  of 
Sept.  1689,  in  the  journal  of  audiences.) Barratry,  in  marine  lan- 
guage, is  a  deceit,  or  malverfation,  committed  by  a  captain  or  mafter  of 
a  veffel,   to   caufe,  or  caufing   thofe  to  lofe   their   merchandife,    to    whom 

it  belongs. — -Ferrieres  DiS. Barratry    is   when  the  mafter  of  a  fhip,  or 

the  mariners,  cheat  the  owners  or  infurers^  whether  by  running  away  M'ith  the 
fhip,  finking  her,   deferting  her,  or  embezzling  the  cargo. — Di£i.  of  Tr.  and 

Com.  214. Barratry  of  the    mariners   is  a  difeafe    fo  epidemical  on  fliip- 

board,  that  it  is  very  rare  for  a  mafter,  be  his  induftry  never  fo  great,  to 
prevent  it ;  a  fpan  of  villainy  on  fliip-board  foon  fpreads  out  to  a  cloud,  for 
no  other  caufe  but  that  of  the  circular  encouragement  that  one  knavifh 
mariner  gives  another. — • — -However,  the  law  does  in  fuch  cafes  impute  offences 
and  faults  committed  by  them  to  negligences  in   the  mafter ;    and   were  it 

otherwife,  the  merchants  would  be  in  a  very  dangerous  condition. The 

reafons 


36 


BARRATRY. 


reafons  why  they  ought  to  be  refponfible  are,  for  that  the  manners  are  of  his 
own  chufing,  and  under  his  correction  and  government,  and  know  no  other 
luperior  on  (hip-board  but  himfelf;  and  if  they  are  faulty,  he  may  correft 
and  puniOi  them,  and  juflify  the  fame  by  I4w  :  and  likewife  if  tiie  faft  is 
apparently  proved  againft  them,  may  reimburfe  himfelf  out  of  their  wages. — 

MoUoy  ;  cites  Roll.  Ab.  533.  Pafch.  11.  Jac.  in  B.  R.  Horn  v.  Smith. And 

therefore,  in  all  cafes  wherefoever  the  merchant  loads  aboard  any  goods  or 
merchandife,  if  they  be  loft,  embezzled,  or  any  ways  damnified,  he  muft  be 
refponfible  for  them  ;  for  the  very  loading  them  aboard  makes  him  liable, 
and  that  as  well  by  the  common  law,  as  the  law  marine. — 1  Ven.  150.  238  ; 
1  Mod.  85 ;  2  Lev.  69. — Nay,  if  his  mariners  go  with  the  fliip-boat  to  the 
quay  or  wharf  to  fetch  goods  on  fhip-board,  if  once  they  have  taken  charge 
of  them,  the  mafter  becomes  immediately  refponfible,  if  they  fteal,  lofe, 
damnify,  or  embezzle  them. — The  moft  ancient  record  that  is  found  extant 
concerning  this  matter,  is  that  in  Edward  the  third's  time,  where  one  brought 
an  a6Hon  of  trefpafs  againft  the  mafter  for  an  embezzlement  by  his  mariners 
of  twenty-two  pieces  of  gold,  a  bow,  a  ftieaf  of  arrows,  a  fword,  and  other 
things;  and  adjudged  he  fliould  anfwer. — Molloy,  b.  1.   c.  3. 

3.  Different  regulations  have  been  made,  and  altered,  from  time  to  time, 
bv  authority,  in  different  countries,  with  regard  to  the  obligation  of  infurers 
in  different  fpecies  of  barratry. — How  this  matter  has  been  adjudged,  and  is 
now  underftood,  in  England,  will  fully  appear  by  what  follows. 

4.  To  make  it  barratry,  there  muft  be  fomething  of  a  criminal  nature,  as 

well  as  a  breach  of  contraft. — Strange,  1173. As  when  a  fliip  goes  out  of 

it's  proper  courfe  by  a  tortious  a6l  of  the  mafter,  or  mariners,  for  their  oxon 
benefit ;  which  is  of  the  fame  nature,  as  a  piracy,  or  robbery  at  fea. 

5.  Case. — Where  a  fliip  was  infured  againft  the  barratry  of  the  mafter, 
<S:c.  in  an  aftion  brought  thereupon,  the  jury  found  that  the  fhip  was  loft  by 
the  fraud  and  negligence  of  the  mafter  : — the  court  held,  that  if  the  mafter 
run  away  with  the  fliip,  or  embezzled  the  goods,  the  merchant  may  have  an 
a6tion  againft  him ;  for  it  is  reafonable  that  merchants  who  hazard  their 
ftocks  in  foreign  traffick,  fliould  fecure  themfelves  in  what  manner  they  think 
proper,  againft  barratry. of  die  mafter  and  all  other  frauds  ;  and  this  muft  be 
intended  fraud  in  the  mafter,  not  a  bare  negleft :    and  they  all  agreed  that 

fraud  is  barratry,  though  not  named  in  the  covenant ;    but  negligence  might 
not. — 1  Mod.  230,  231. 

6.  Case. — Cambridge  brought  a  writ  of  error  upon  a  judgment  given 
againft  him  in  the  Common  Pleas,  in  an  aftion  brought  by  the  plainiift  upon 
a  policy  of  infurance  of  the  fliip  Riga  Merchant,  at  and  from  Port  Mahon  to 
London.  And  ferjeant  Braithwaite  for  the  plaintiff  in  error  infifted  that  the 
judgment  was  erroneous,  becaufe  the  breach  was  ill  affigned :  for  the  policy^ 
was,   that  the  defendant  Cambridge  fliould  infure  the  faid  fliip,   among  other 

things 


BARRATRY. 


37 


things,  againfl  the  barratry  of  tlie  mailer,  and  all  other  dangers,  damages,  and 
misfortunes,  which  fhould  happen  to  the  prejudice  and  damage  of  the  faid 
(hip  ;  and  the  breach  affigned  was,  that  the  Ihip,  in  the  faid  voyage,  per 
fraudem  et  negligentiam  magijlri  navis  pradiEioz  deprejfa  et  fuhmerfa  fuit,  ct 
totaliter perdita  et  amijfafuit,  et  nullius  valoris  devenit. — This,  he  infilled, 
was  not  witliin  the  meaning  of  the  word  barratry ;  but  the  breach  fhould 
have  been  exprefs,  that  the  (hip  was  loft  by  the  barratry  of  the  mafter : — • 
befides,  the  owner  of  the  goods  has  a  remedy  againft  the  owners  of  the  fliip, 
for  any  prejudice  he  receives  by  the  fraud  or  neglecl  of  the  mafter;  and 
therefore,  there  is  the  lefs  reafon  the  infurer  fhould  be  liable  :  befides,  if  the 
word  barratry  fliould  import  fraud,  yet  it  does  not  import  negleft  ;  and  the 
faft  here  alleged  is,  that  the  ftiip  was  loft  by  the  fraud  and  negleft  of  the 
mafter. — But  the  court  was  unanimoufly  of  opinion,  that  there  was  no  occafion 
to  aver  the  fa6l  in  the  very  words  of  the  policy  ;  but  if  the  faft  alleged  came 
within  the  meaning  of  the  words  in  the  policy,  it  is  fufficient. — Now  barratry 
imports  fraud  (Du  Frefne  Gloflar.  verbo  barataria,y?'(2.iii,  dolus)  and  he  that 
commits  a  fraud  may  properly  be  faid  to  be  guilty  of  a  negle6l,  viz.  of  his 
duty.  Barratry  of  a  mafter  is  not  to  be  confined  to  the  mafter's  running  away 
with  the  fliip  ;  and  the  general  words  of  the  policy  ought  to  be  conftrued  to 
eAend  to  lofles  of  the  like  nature  as  thofe  mentioned  before.  Now  loftes 
arifing  from  the  fraud  of  the  mafter,  are  of  the  fame  nature  as  if  he  had  run 
away  with  the  ftiip  ;  fuppofmg  barratry  was  to  be  confined  to  that,  which  it  is 
not ;  becaufe  it  imports  any  fraud.  And  the  judgment  was  affirmed,  April  27, 
1724. — L.  Raym.  1349. — Knight  v.  Cambridge. — S.  C.  Stran.  581. 

7.  Case. — The  plaintiff"  being  fued  at  law  upon  a  policy  of  infurance  of  a 
ftiip,  and  againft  the  barratry  of  the  mafter,  which  was  affigned  in  the 
declaration,  brought  his  bill  in  chancery  to  be  relieved ;  and  for  an  injunc- 
tion ;  charging  that  one  Matthews  the  mafter,  and  alfo  owner  of  the  fhip, 
had  before  the  voyage,  entered  into  a  bottomry  bond  to  the  defendant  for 
200I.  and  that  after,  by  bill  of  fale,  he  afligned  over  his  intercft  in  the  fliip 
to  the  defendant,  as  a  fecurity  for  this  200I.  and  infifted  that  Matthews  was, 
neverthelefs,  in  equity  to  be  confidered  as  owner  of  the  fliip,  though  in  law 
the  ownerffiip  and  property  would  be  looked  upon  to  be  in  the  defendant ; 
and  infifted,  that  the  owner  of  a  fliip  could  not,  either  in  law  or  equity,  be 
guilty  of  a  barratry  concerning  the  fliip  ;  and  therefore  prayed  an  injunction, 

and  that  the  policy  might  be  delivered  up. The  voyage  infured  was  from 

London  to  Marfeilles,  and  from  thence  to  fome  port  in  Holland.  The  cafe 
was,  that  the  mafter  failed  with  the  fhip  to  Marfeilles,  and  then  inftead  of 
purfuing  his  voyage,  failed  to  the  Weft-Indies,  and  there  fold  the  fliip  and 
died  infolvent. — Thefe  matters  being  confefled  by  the  anfwer,  an  injunction 
was  moved  for  on  the  principle,  that  a  mortgager  is  to  be  confidered  in  equity 
as  owner  of  the  thing  mortgaged,  and  that  Matthews,  the  mafter,  being 
owner,  could  not  be  guilty  of  barratry.  To  fliew  which,  a  cafe  was  cited  of 
Stamina  and  Brozvn,  where  it  was  determined  the  preceding  term  in  the 
King's-Bench. — Ld.Hardwicke,  chancellor  :  Barratry  is  an  aft  of  wrong  done 

L  by 


38  BARRATRY. 

by  the  mafler  againft  the  fhip  and  goods ;  and  this  being  in  the  cafe  of  a 
fliip  the  queftion  will  be,  who  is  to  be  confidered  as  the  owner  ?  There  are 
feveral  cafes  that  mio-ht  be  put  where  barratry  may  be  afligned  as  the  breach 
of  an  affurance,  and  barratry  or  not,  is  a  queftion  properly  determinable  at 
law  •  but  here  it  is  not  fo,  for  the  courts  of  law  will  not  confider  a  mortgager 
as  havino-  any  right  or  intereft  in  the  thing  mortgaged  ;  and  there  are  many 
cafes  where  a  man  may  come  into  a  court  of  equity  for  relief,  in  refpeft  of  a 
part  only  of  his  cafe.  It  might  indeed  be  confidered  in  law,  whether  what 
the  mafter  hath  done,  fuppofing  owner  or  not,  was  not  a  breach  of  the 
contraft,  as  mafl«rof  the  ftiip,  and  fo  a  barratry;  and  this  maybe  confidered 
likewife  in  this  court.  But  at  law  a  defendant  cannot  read  part  of  the 
plaintiff's  anfwer  to  a  bill  brought  againft  him  here ;  the  whole  anfwer  muft 
be  read,  which  hath  been  often  a  reafon  for  this  court  interpofing  by  injunftion 
upon  a  plaint  at  law  ;  and  conftdering  the  mixed  nature  of  this  cafe,  I  think 
an  injunftion  ought  to  be  granted.  Ordered  accordingly. — Di6l.  Tr.  and 
Com.  147;   16  Geo.  1. — Lacen\.  SxoaJJo. 

3.     Case. — Motion  for  a  new  trial,  Nov.    10th    1774; — Lord  Mansfield 

delivered  the  judgment  of  the  court  to  the  following  effeft. This  cafe 

has  been  for  fome  time  for  the  confideration  of  the  court :  we  are  agreed  tn 
our  opinions.  I  will  firft  ftate  the  cafe.  You  will  attend,  becaufe  I  have  not 
<rot  the  report,  but  only  a  fhort  note,   for  fear  I  ftiould  omit  any  material 

circumftances. This  is  an  aftion  on  a  policy  of  infurance,  on  goods,  by 

the  Thomas  and  Matthew, Brown,  mafter,  upon  a  voyage  from  London 

to  Seville,  which  policy  undertakes  againft  barratry  :    this  fhip  was  to  take  in 

goods  for  any  perfons  in  the  way  oi  general  freightage. The  fliip  belonged 

to  Willes  as  owner  of  the  hulk,  but  was  chartered  by  Darwin  for  that  parti- 
cular voyage ;  and,  without  the  knowledge  of  Darwin,  went  to  Guernfey, 
and  there  took  in  brandy  in  evafion  of  the  duties.  Thence  fell  into  a  ftorm, 
was  much  damaged,  and  driven  back  to  Dartmouth  ;  thence  refitted,  and  went 
on  upon  the  voyage,  but  in  going  was  fo  much  further  damaged,  as  to  be 
incapable  of  continuing  her  courfe,  and  put  in  at  Helford.  This  fliip  was 
not  confifcated  on  account  of  the  contraband  goods.  In  confequence  of  the 
damage  the  fliip  fuffered,  the  goods  were  fpoilt.  The  plaintiffs  brought  this 
aftion  to  recover  on  the  policy  againft  the  underwriters,  for  the  lofs  of  the 
goods  fo  happening  as  is  ftated,  and  the  terms  of  the  infurance  being  as  is 
already  ftated.  The  jury  found  a  verdict,  under  the  direftions  of  the  judge, 
for  the  plaintiffs — and  they  find  (as  above  ftated)  that  the  voyage  to  Guernfey 
for  the  purpofes  already  mentioned,  was  xcith  the  knowledge  of  Willes ;  but 

■without  the  knowledge  of  Darzvin.' Upon  this  a  new   trial  has  been 

moved,  and  the  general  queftion  is,  whether  this  a6l  of  the  captain  in  going  the 
fmiLggling  voyage,  and  taking  in  the  brandy  as  above  ftated,  be  or  be  not  barra- 
try, fo  as  to  entitle  the  plaintiffs  to  recover  ? On  the  trial  the  defendants 

contended  this  was  not  a  deviation,  becaufe  it  was  a  nexo  voyage :  fo  far  they 
were  right :  but  it  was  contended  by  the  plaintiffs,  that  it  was  barratry  ;  becaufe 
a  voyage  againjt  orders  for  an  illegal  purpofe,   whereby  the  goods    were 

expofed 


BARRATRY. 


39 


expofed  to  danger,  and  were  afterwards  aclually  fpoiled. Mucli  ftrefs  was 

laid  upon  the  trial,  that,  if  with  the  confent  of  Willes,  it  could  not  be  barratry  ; 
becaufe  barratry  could  not  be  when  widi  the  confent  of  the  owner.  To  be 
lure  when  the  owner  orders  or  confcnts  to  any  thing,  he  cannot  recover 
againil  his  own  order,  or  confent,  given  for  what  has  been  done  :  and 
this,  as  it  is  true  in  the  principle,  would  have  been  very  true  in  the  appli- 
cation, if  Willes  had  been  at  all  concerned  in  the  cafe. 1  believe  it  has 

never  been  decided  with  accuraty  what  barratry  is,  in  England  :-— and  as  in 
all  mercantile  tranfaftions  I  have  h,eld  certainty  of  greater  confequence  than 
perhaps  upon  what  rule  originally  the  cafe  was  decided,  I  think  general  verdicts 
are  not  to  be  regarded,  as  certainty  is  never  to  be  had  from  them,  it  not 
appearing  on  what  grounds  the  jury  found  :  and  in  general,  notes  of  cfl/^^ 
taken  at  nifi  prius,  though  ever  fo  well  taken,  and  decided  by  judges  of  ever 
fo  high  authority,   are   liable  to  the  fame  objeftion  for  fimilar  reafons. — (See 

Precedent.) In  Pole  and  Fitzgerald,  it  may  be  feen  how  much  the  different 

reafons  given  as  the  ground  of  the  judgment,  in  cafes  of  general  verdift,  tend 

to  exclude  certainty  from  cafes  of  that  nature. Of  the  common  law  cafes 

which  merit  confideration  upon  this  head,  there  are  however  Knight  and 
Cambridge,  where  it  was  held  that  one  aft  of  barratry  was,  going  out  without 
payment  of  port  duties.  And  the  court  fays,  that  "  barratry  is  of  a  general 
fignification,  and  not  confined  to  running  away  with  the  fliip  :  that  it  fignifies 
fraus  and   dolus,  and  extends  to  any  fraud  of  the  mafter;  that  the  end  of 

infuring  is  to  be  fafe  in  all   events." Stamina  and  Brozvn ;    the  cafe, 

from  the  queftion  there  put,  and  the  anfwer  by  the  chief  juftice,  appears  very 
much  to  the  prefent  cafe  :  the  vefTel  Was  to  go  ftraight  to  Marfeilles,  and  it 
goes  out  of  the  way  feemingly  on  a  formed  defign,  fomewhere,  to  cheat  the 
contraftor  in  the  voyage.  He  fays  this  is  not  fimply  a  deviation,  but  fomewhat 
more.  The  jury  afk  whether  if  it  were  for  the  advantage  of  the  owner,  and 
not  his  own,  this  was  barratry  ?  The  chief  juftice  tells  them,  no  ;  they  find 
for  the  defendant :  and  upon  a  motion  for  a  new  trial,  it  is  refufed,  becaufe 
it  appeared  the  mafter  afted  confiftent  with  his  duty  to  the  owners,  and  the 
plaintiff's  agent  knew  of  the  intended  alteration ;    and  to  make  it  barratry 

there  muft  be  fomething  criminal. 1   do   not  think  either  of  thefe   cafes 

ftrong  enongh  to  fix  the  bounds   of  what  is,  or  is  not  barratry. The 

laft  cafe  is  Elton  and  Brogden  :  there  the  fliip  went  out  with  letters  of  marque 
infured  by  the  defendant.  In  her  voyage  flie  took  a  prize,  and  returned  to 
Briftol,  and  received  her  proportionable  part  of  the  premium.  Then  anodier 
policy  was  made ;  flie  failed  again  with  exprefs  orders  from  the  owners,  that 
in  cafe  of  taking  another  prize,  they  fliould  put  fome  hands  on  board  the  faid 
prize,  and  fend  her  to  Briflol  ;  but  the  fhip  in  queftion  fliould  continue  her 
voyage  with^the  merchant's  goods.  Another  prize  was  taken,  and  the  captain 
gave  orders  to  fome  of  the  crew  to  carry  the  prize  to  Briftol,  and  defigned 
to  go  to  Newfoundland  ;  but  the  crew  oppofed  and  infifted  he  Ihould  go  back, 
though  he  alleged  his  orders  :    and  they  forced  him  out  of  die  way,  whereby 

his  own  (hip  was  taken,  but  die  prize  got  fafe. On  aftion  brought  againft 

the  infurers,  it  was  contended  this  was  fuch  a  deviation  as  difcharged  them  ; 

but 


40  B    A    R    R    A    T    R    Y. 

but  the  objeflion  made  to  this  is,  that  here  was  a  force  upon  the  mafler,  fuch 
as  he  could  not  refill :  but  the  anfwer  is,  the  infurance  is  againfl  the  creio  as 
well  as  the  mafler.  I  think  the  more  probable  ground  is,  that  as  this  was  a 
velTel  upon  a  privateering  voyage  it  was  neceflary  they  {hould  take  care  oF 
the  prize,  when  they  had  taken  it,  and  the  crew  exercifed  their  judgment  for 

the  benefit  of  the  fliip. 1  come  now  to  tlie  cafe  before  the  court  ;  which 

bein"-  material,   and  as  it  appeared   to  me  a  nevd  one,   I  left  it  for  argument, 

and  it  has  been  very  ably  argued. As  it  was   a  matter  of  a  commercial 

nature,  and  turned  greatly  upon  the  ufagc  and  cuftom  of  merchants,  I  confulted 
an  eminent  merchant,*   of  whofe  fkill  and  experience  I  have   great  opinion. 

1  do  not  find  the  meaning  of  the  word  has  been  fettled  in  this  country. 

The   books   and  ordinances   of  other   nations   M^ere   very  properly   quoted 

to  come   at  the   underftanding   of  their  ufe  of  the  word. The   Italians 

were  the  firft  great  trading  nation  who  introduced  the  word.  Barratrare, 
in  the  Italian  diftionaries,  fignifies  to  cheat,  defraud,  or  trick ;  and  this  feems 
to  have  been  the  general  acceptation  of  the  word  in   other   trading  nations, 

who  have  borrowed    the    term    from  thence. Yet  undoubtedly,    where 

the  cafe  is  of  the  owner  of  the  fliip  confenting,  he  cannot  recover  for  what 
was  done  by  his  knowledge  and  confent.  But  in  this  cafe,  Willes  the 
general  owner  has  nothing  to  do  with  it :  Darwin  engages  ;  puts  the  goods 
on  board  ;    it  was  againft  the  confent  of  the  owner,  for  this  purpofe,  if  what 

was  done  was  againfl  the  confent  of  Darwin. What  is  done  ?    The  fhip 

is  to  fet  out  from  London  to  Seville,  Darwin  relies  upon  this ;  and  trufls 
that  the  voyage  will  be  immediate,  as  on  the  faith  of  the  infurance  he  had 
reafon.  The  mafler,  inflead  of  going  direftly  to  Seville,  goes  upon  an 
iniquitous  voyage,  by  which  the  fhip  was  liable  to  be  confifcated  :  this  is  the 
deceit  upon  Darwin ;  and  the  goods,  after  this  fraudulent  departure  from  the 

courfe  of  the  voyage,   the  fliip  falling  into  a  florm,  are  fpoiled. And 

whether  the  damages  happened  direftly  or  not,  does  not  fignify  ;  nor  whether 
it  was  an  aft  of  immediate  intentional  injury  againfl  the  owner  of  the  goods. 

If  the  mafler  runs  away  with  the  fhip,  this  is  barratry  ;    and  though  the 

fliip  afterwards  returns  and  purfues  the  voyage,  it  is  flill  barratry ;  and  the 
perfon  who  by  fo  offending  was  once  liable,  continues  liable,   as  to  all  confe- 

quential  damages. Here  I  think  the  damage  fufificiently  appears,  and  upon 

the  general  principle  falls  widiin  the  rule  of  confequential  damage,  as  it 
might  not  have  happened  but  for  the  illicit  voyage:  and 'whether  it  would 
have  happened  or  not,   if  the  fliip  had  continued  in  its  ftraight  courfe,  is  not 

material. And  in  this  cafe  there  is  great  reafon.     Darwin  has  infured  ;    he 

Iqfes  by  the  deviation ;    the  deviation  is  the  voluntary,   illegal,  fraudulent  a6t 

of  the   captain ;    and  therefore    it  appears    to  me  extremely  clear,  that  this 

fmuggling  voyage  was  barratry  in  the  mafler,  and  confequently  comes  within 

the  terms  of  the  infurance  ;    and  of  courfe  that  the  verdift  is  right,   and  that 

there  ought  not  to  be  a  new  trial. Mr.  Juftice  Aflon  :  one  would  wonder 

when  this  word  was  in  ufe  txoo  hundred  years  ago,  that  there  fhould  remain 

*  See  Prelim.  Difc.    p.  18. 

now 


BARRATRY. 


■V 


now  any  doubt  what  barratry  is. 1  think  it  has  always  been  the  fame  in 

idea  and  general  meaning,  though  differing  in  terms,  and  not  fettled  in  prafticc 

— deceit,  villainy,  knavery,  fraud. In  Florence   it  was  fo  explained   near 

two  hundred  years  ago,  "  De  barratarid  ct  contrabandd  vendiiione." Where 

the  mafter  is  afling  not  for  his  ozon  advantage,  but  for  the  benefit  or  with  the 
confent  of  the  owners,  it  appears,   by  tlie  cafe  in  Strange,  this  is  not  barratry, 

for  them  to  charge  him  with  the  lofs. But  who  in  this  cafe  is  the  owner  ? 

verbally,  Willes,  the  owner  of  the  hulk  of  the  fhip  ;  but  really,  as  far  as  this 
queffion  is  concerned,  he  has  nothing  to  do  with  it ;  the  owner  is  Darwin. 
I  think  the  jury  did  very  right  in  conhdering  Darwin  as  ow^ner,  pro  hdc  vice. 

This  is  without  the  knowledge,  then,  of  the  owner :  it  is  not  for  his  benefit, 

but  to  the  danger  of  the  goods,  and  for  an  illicit  purpofe. And  it  would 

not  fignify  whether  the  Ihip  was  fafe  or  no  from  that  voyage.     There  is  no 
faying  when  the  mifchief  happened  to  the  veffel  which  occafioned  the  lofs. 
I  think  this  is  one  of  the   cafes  where  the  underwriter  is  liable  for  the  aft  of 
the  mailer ;  being  a  criminal  aft.     And  the  cafe  of  Kniglit   and  Cambridge 

fpeaks  of  any  criminal  aft,  deceit,  or  fraud  ;  fo  does  Stamma  and  Brown. 

It  is  a  deviation  for  an  illegal  purpofe,  which,  I  think,  is  fufficient  to  make  it 
barratry  (being  without  confent  of  the  temporary  owner)  and  the  infurers 
liable   to    anfwer   the  confequential  lofs,   though  not   direUly   or  neccffarily 

confequential  on   the    deviation.- -Mr,  Juflice   Willes :    I   think   this    is 

barratry.  Darwin  was  the  freighter :  I  think  it's  being  done  without  the 
privity  of  the  freighter  is  the  fame  as  if  done  without  the  privity  of  the  owner. 

The  only  queftion  that  occurred  to  me  was,  whether  this  was  a  lofs  by 

the  aft  of  barratry :    for  the  three  common  law  cafes  feem  to  fay  that  the  Jofs 

muff:  happen  by  the  aft  of  barratry. There   is   no  faying  here  tdien  flie 

might  fuftain  that  lofs  :  by  going  out  of  the  way  fhe  fell  into  a  ftorm,  which 
(he  might  have  efcaped  if  (lie  had  not  gone  to  Guernfey.  And  this,  after  a 
verdift,  the  court  may  take  as  probable,   that  the  lofs  may  have  happened  by 

confequence  of  the  voyage. This,  is  certainly  a  deviation  without  the  confent 

of  the  freighter :  and  poflibly  the  caufe  of  the  damage  fuffered  ;  and  it  is  a 
deviation  for  a  bad  purpofe  :  and  in  the  juflice  of  the  cafe  I  am  fatisfied, 
whatever  I  might  doubt,  fmce  it  does  not  appear  to  fall  within  the  cafes  cited. 
And  though  it  is  not  a  lofs  by  a  fraudulent  intent  of  the  mafler  or  mariners, 
to  hurt,  or  deftroy,  or  embezzle,  or  corrupt  the  goods  of  the  owner;  yet  the 
fuhjlantial  juflice  has  been  done,  and  the  jury  have  found  a  verdid  which, 

I  think,  we  ought  not  to  fet  afide. — Mr.  Juflice  Afhhurfl:  I  am  of  the 

fame  opinion  as  at  the  trial.  I  think  they  have  a  right  to  recover  upon 
either  count,  whether  of  lofs  by  florms  and  perils  of  the  fea,  or  for  barratry  of 

the  mafler. As  to  the  objeftion,  that  the  two  charges  of  accident  and 

criminal  intent  clafh  with  one  another,  the  party  fhall  not  fet  up  his  own  fault 
as  a  defence  ;  for  if  it  was  not  accident,  it  was  a  criminal  deviation,  or  barratry ; 
and  it  is  no  anfwer  for  him  to  fay  it  cannot  be  both,  and  therefore  it  fliall 

be  neither. 1  think  there  was  fufficient  evidence  to  find  it  a  lofs  by  florms 

and  perils  of  the  fea,  upon  the  firfl  count,  fuppofmg  this  to  have  been  not 

barratry. And  further,  I  think  it  was  barratry,  being  a  deviation  for  an 

J  i  fl  >  M  unlawful 


^2  B    A    R    T    E     R. 

milaufiil  act,  and  lofs  enfuing ;  but  even  without  that,  upon  xhcfrjl  ground, 
I  think  the  verdi6l  good  on  the  firll  count. — Vdllejo  and  Echalaz  v.  Wheeler. 
—Loft  63 1 . ' 

g.  Remark. — Mr.  Juftice  Afhhurft  ftems  not  to  have  had  a  clear  idea  of 
the  eft'eft  (as  to  the  underwriters)  of  the  diftinttion  between  deviation  for  a 
iaxcful  purpofc,  fuch  as  for  the  benefit  of  the  owners,  and  an  illegal  deviation, 
or  criminal  acl ; — for,  if  the'  deviation  in  the  foregoing  cafe  had  been  of  the 
former  kind,  the  infurers  would  not  have  been  Hable  for  any  accident  or  lofs 
byjloms  and  perils  of  ihe/ea  (as  he  fuppofed)  confequential  oi/uch  deviation. 

10.  By  Stat.  1  Ann.  ft.  2.  c.  g.  f  4. — ^4  Geo.  1.  c.  12.  f  3. — and  11  Geo, 
1.  c.  20.  f  5. — If  any  owner  of,  or  captain,  mafter,  officer,  or  mariner, 
belonging  to  any  fhip,  (hall  wilfully  cajt  azoay,  hirn,  or  dejlroy  the  fhip,  or 
dired  or  procure  the  fame  to  be  done,  with  intent  to  prejudice  any  perfon, 
that  fliall  have  underwritten  any  policy  of  infurance  thereon,  or  any  merchant 
that  fhall  load  goods  thei'ein,  or  any  owner  of  fuch  fhip  ;  the  perfons 
offending  being  thereof  convifted,  fliall  be  adjudged  felons,  and  fuffer  without 

benefit  of  clergy. S;  6. — If  any  of  the  faid  offences  fhall  be  cominitted 

within  the  body  of  any  county,  the  fame  fhall  be  enquired  of,  determined, 
and  adjudged,  as  felonies  done  within  any  county  are  to  be  ;  and  if  any  of 
the  faid  offences  fhall  be  cominitted  upon  the  high  feas,   the  fame  fliall  be 
tried  and  adjudged  as  by  28  Hen.  8.  c,  15. 

' '  11.  RemArR. — There  are  various  afts  of  a  fraudulent  and  criminal  nature 
frequently  committed  by  mafters  and  mariners,  efpecially  in  time  of  war, 
through  which  owners  and  infurers,  particularly  the  latter,  are  greatly  wronged, 
and  caufed  to  fuffer  loffes ; — for  which  neither  the  limited  words  of  the 
afeove-recited  afts,  nor  any  other  law  in  England,  provide  an  adequate 
punifhment,  as  is  exprefly  done  in  other  countries,  the  remedy  being  chiefly 
'hf'  i  civil  aftion  only. 

■  i^.  See  Prelim.  Difc.  26  and  feq.  Deviation,  Embezzlement,  Fraud, 
Mafiner,  Majler,  Negligence,  Policy,  Privateer,  Wan 


BARTER.  M 


i.  TF  the  infurance  be  made  upon  returns  from  a  country  "where  trade  is 
-^  carried  on  by  barter,  the  valuation  of  the  goods  in  return   fhall  be 
made  on  the  coft  of  thofe  given  in  barter,    adding  thereto  all  charges. — 
Ordin  of  France. ^-Guidon,  c  15.  art.  15.  'a  a;;. 

2.    ^EE  Africii. 


B  I  L  B  O  A. 


BLANK.  43 

B     I     L     B     O     A. 

1.  TN  the  policies   ufed   at   Bilboa,    the  hour  m  M-hich    they  are  made  is 
-*•  inferted  by  exprefs  direction  of  the  ordinance  ; — the  rifque  on  fhips 

ends,  as  in  England,  twenty-four  hours  after  arrival  at  their  moorings  : — ^ 
and  the  infurers  obligate  themfelves  for  the  charges  which  may  accrue  in 
cafes  of  lofs  or  damage,  although  nothing  be  faved. 

2.     See  Commencement i  End^  Ordinance,  Salvage. 

BILL         OFLADING. 

See  Prelim.  Difc.  jg.    Blank,  Document,  Inter ejt,  Mafter,  Proof, 

BILL         OF         SALE. 

See  Document,  Proof,  Ship. 

BISCUIT. 

See  Prelim.  Difc.  43.  Average,  Corn,  Damage,  ^eetfe,  Pcrifiahle  Commodities, 

BLANK. 

1.  T>  Y  means  of  blanks,  which  are  very  frequently  left  in  our  policies,  at 
■AJ  the  time  of  fubfcribing  them,  great  opportunities  and  temptations 
are  afforded  to  unfair  affureds  or  their  agents,  for  various  deceptions  and 
impofitions,  in  filling  up  fuch  blanks,  afterwards,  to  the  wrong  of  jthe 
underwriters :  by  arbitrarily  defcribing,  or  fixing  untruly,  tlie  affured, 
the  intereft  (on  proper  account,  or  on  commiffion)  the  quantity,  quality, 
valuation,  marks,  or  numbers  of  the  goods,  or  other  circumflances ;  fo  as 
to  recover  a  lofs,  average,  or  return  for  fhort  or  no  intereft,  convoy,  &c. 
according  as  events  may  happen. — This  is  too  often  praclifed  with  regard 
topolicies  on  goods  '■'  in  astiyfup  or  flips.  " 

2.  Case. — If  a  Ihip  be  infured  from  jLondon  to  and  a  blank 
be  left  by  the  lader  to  prevent  her  furprife  by  the  enemy  ;  in  her  voyage 
/he  Ijappens  to  be  caft  away,  and  though  there  be  private  inftruftions  for 
her  port,  yet  the  affured  muft  fit  down  by  the  lofs  by  reafon  of  the  uncer- 
tainty. So  in  cafe  a  blank  be  left  in  the  policy  for  the  value  of  the  fhip  or 
lading,  if  a  lofs  Jiappem,  and  there  be  not  words  to  fupply  this  defeft, 
the  affured  may  endanger  the  policy. — Molloy,  b.  2.  c.  7.  f.  14.  in  cafe  of 
Monf.  Gffurdan,  governor  of  Calais,  an.  1585. 

p^.  CiASEiT^A  Lomdon  merchant  caufeda  fliip  at  Calais  to  be  freighted  for 
ILifbon,  and  to  return  b^ck  again  to  CalaJs  pr  London  ;  and  the  fliip  going  to 

Lifbon, 


^^  BOX    T     O    M     R    Y. 

Lifbon,  was  there  lacier,  uith  fugar,  pepper,  and  other  commodities,  to  come 
for  London  ;  whereupon  the  merchant  caufed  6000  French  crowns  to  be 
infured  on  her  at  Rouen;  and  it  happened  that  the  (hip  was  caft  away  upon 
the  coafl:  of  France  in  coming  homewards,  and  all  the  goods  were  lofl ;  and 
intimation  of  this  was  made  to  tlie  affurers,  and  all  the  proof  concerning  the 
ladin<T  of  the  faid  fliip  was  fent  to  the  commiflioners  of  affurance  at  Rouen  : 
but  upon  examining  the-  bills  of  lading,  which  declared  truly  the  quality  and 
quantity  of  the  goods,  the  merchant's  faftor  at  Lifbon  (confidering  it  was  a 
dan"-crous  time  of  war,  and  the  merchant  living  in  London)  left  the  place  of 
the  (hip's  difcharge  in  blank,  and  by  letters  over  land  gave  him  notice  of  it, 
which  was  made  apparent. — Here,  after  examination  of  the  fea  laws  and 
cuftoms,  •  and  confulting  experienced  merchants,  it  was  determined  that  the 
infurers  fliould  be  difcharged,  and  make  only  a  reditution  of  the  money 
received  by  them  for  the  premium,  out  of  which  they  abated  10s.  for  every 
lool.  for  their  fubfcribing  to  the  policy  of  infurance. — Gen.  Treat,  of  Trade, 
72,  73,  cites  Lex  Merc,  112.— The  cafe  oi  Gerard  Malynes. 

4.  We  prohibit  all  policy-clerks,  fecretarics  of  infurance-chambers, 
notaries,  or  brokers,  to  have  policies  underwritten,  in  which  any  thing  is  left 
in  blank,  under  the  penalty  of  cofts  or  damages  :  nor  (hall  they  be  concerned 
in  infurances  direftly  or  indiredly  themfelves,  or  by  other  perfons,  or  take 
any  cefTion  of  the  rights  and  intereft  of  the  infured,  under  the  penalty  of  (ive 
hundred  livres  for  the  (irft  time,  and  in  cafe  of  repetition,  to  be  deprived  of 
their  employment :    which  penalties  (liall  not  be  in  any  manner  moderated. — > 

Ordin.  of  France. -Lines  mud  be  drawn  wherever  there  are  blanks,   to 

prevent  any  thing  being  inferted  afterwards. — 2  Valins  Comm.  151. 

5.  See  Alteration,  Broker,  Infured,  Inlerefl,  Name,  Proprietor,  Rifque, 
Ship  or  Ships,  Valuation,  Voyage. 


-I 


BOAT. 

F  the  mader  has  incumbered  the  deck  with  goods  to  that  degree  that 
the  fliip's  boat  cannot  be  made  fad  in  it's  proper  place,  but  is  la(hed 
without  board,  and  by  this  means  comes  to  be  lod,  it  (hall  be  made  good  by 
the  mader  only. — Ordin'.  of  Stockh. 

2.     See    Covjlritdion,    Contribidion,   Deck,.   General  Average,     Lighter, 
Overloadinjr. 


o- 


BOTTOMRY. 

;.  T>  OTTOMRY  (which  originally  arofe  from  permitting  the  mader  of  a 

-*-*  fliip,  in  a  foreign  country,  to  hypothecate  the  (hip   in  order  to    raife 

money  to  refit)   is  in  the  nature  of  a  mortgage  of  a  (hip ;  when  the  owner 

takes  up  money  to  enable  him  to  carry  on  his  voyage,  and  pledges  the  keel 

or 


BOTTOMRY. 


45 


or  bottom  of  the  Jliip  (pars  pro  toto)  as  a  fecurity  for  the  repayment : — in 
which  cafe  it  is  underftood,  that,  if  the  (hip  be  loft,  the  lender  lofes  alfo  his 
whole  money ;  but,  if  it  returns  in  fafety,  then  he  fhall  receive  back  his 
principal,  and  alfo  the  premium  or  intereft  agreed  upon,  however  it  may 
exceed  the  legal  rate  of  intereft  : — and  this  is  allowed  to  be  a  valid  contraft 
in  all  trading  nations,  for  the  benefit  of  commerce,  and  by  reafon  of  die 
extraordinary  hazard  run  by  the  lender :  and  in  this  cafe  the  ftiip  and  tackle, 
if  brought  home,  are  anfwerable  (as  well  as  the  perfon  of  the  borrower)  for  the 
money  lent : — but  if  the  loan  is  not  upon  the  veflel,  but  upon  the  goods  and 
merchandife,  which  muft  neceflarily  be  fold  or  exchanged  in  the  courfe  of 
the  voyage,  then  only  the  borrower,  perfonally,  is  bound  to  anfwer  the 
contraft ;  who  therefore  in  this  cafe  is  faid  to  take  up  money  at  refpondentia. 

Thefe  terms  are  alfo  applied  to  contrafts  for  the  repayment  of  money 

borrowed,  not  on  the  ftiip  and  goods  only,  but  on  the  mere  hazard  of  the 
■voyage  itfelf ;  when  a  man  lends  a  merchant  loool.  to  be  employed  in  a 
beneficial  trade,  with  condition  to  be  repaid  with  extraordinary  intereft,  in 
cafe  fuch  a  voyage  be  fafely  performed  :  which  kind  of  agreement  is  fome- 
times  called  fcenus  nauticum,  and  fometimes  ufura  maritima : — ^but,  as  this 
gave  an  opening  for  ufurious  and  gaming  contrafts,  efpecially  upon  long 
voyages,  it  was  enafted  by  the  Stat,  ig  Geo.  2.  c.  37.  (as  hereafter  mentioned) 
— 2  Black.  Com.  458. 

2.     Bottomry  contra6ls  have  every  where  been  made  ufe  of,  long  before 

infurances. In  former  times  they  were  made  only  on  the  body  and  keel 

of  the  fliip ;  and  were  therefore  called  Bomerie,  from  the  Flemifh  word  Borne, 

which  fignifies  the  keel  of  a  veflel. — Guidon. — Kuricke. — Loccenius. They 

were  well  underftood  in  England  in  1622,  when  Gerard  Malynes,  an  expert 
and  learned  merchant,  wrote  his  Lex  Mercatoria  : — -in  chap.  3 1 .  he  explains 
it  to  be  a  contraft  jointly  of  intereft  and  infurance,  as  well  on  goods  as  on 
(hips: — however  he  feems  not  to  have  confidered  in  what  manner  the  lender 
(who  he  fays  is  the  in/urer)  ftiould  be  dealt  with,  in  cafe  the  ftiip  or  goods 
fhould  be  damaged : — or,  fuppofe  the  borrower  had  nothing  elfe  aboard  but 
the  goods  in  the  outward-bound  voyage,  and  the  perfon  who  bought  them 
abroad  did  not  pay  for  them,  fo  that  no  returns  were  brought  from  thence 
in  the  ftiip ;  Malynes  has  not  mentioned,  that  the  borrower  (as  he  furely 
ought)  ftiould  have  fome  abatement  of  the  premium  for  the  homeward-bound 

voyage,  in  which  he  had  nothing  to  rifque. We  find  in  Molloy,  de  jure 

maritimo,  part  2.  c.  2.  a  ftrength  of  reafoning,  with  a  good  deal  of  perfpicuity, 
on  bottomry  : — he  complains,  that  "  many  majlers  of  ftiips  having  infured,  or 
"  taken  up  monies  on  bottomry,  to  a  greater  amount  than  the  value  of  their 
'*'  adventure,  do  wilfully  caft  away,  burn,  or  otherwife  deftroy  the  fliips  under 
*'  their  care. " — This  was  made  felony,  16  Car.  2.  c.  6.  f.  12. — Vide  Stat. 
r  Ann.  and  4  and  11  Geo.  1. — He  mentions  alfo,  "  that  monies  advanced  are 
"  upon  two  fecurities  ;  tlie  one  on  the  bare  ftiip,  the  other  on  the  perfon  of  the 
•*  borrower  v  fometimes  upon  both  :  the  firft  is  where  a  man  takes  up  monies, 
**  and  obliges  himfelf,  if  fuch  a  ftiip  fliall  arrive  at  fuch  a  port,  then  to  repay 

N  *'  (perhaps) 


46  BOTTOMRY. 

"  (perhaps)  double  the  fum  lent. " — Herein  this  writer  likewife  is  deficient, 
not  ha\ing  confidered,  or  faid  one  word,  how  it  was  to  be  in  cafe  of  average : 
— f  13,  he  treats  of  money  borrowed  in  ?ifiB,itious  way,  upon  fuppofition  of 
a  fliip  and  mailer ;  the  condition  reciting,  "  if  that  lliip  (naming  her)  Ihall  not 
arrive  at  fuch  a  place,  within  twelve  months,  the  money  agreed  on  to  be  paid  ; 
but  if  the  fliip  (hall  arrive,  then  nothing  to  be  paid  :" — which  cuilom,  he  fays, 
"  came  from  the  Italians,  and  though  it  is  unconfcionable  and  unjuft,  as  to 
"  internal  right,  yet  it  is  daily  praftifed  ;  and  it  was  not  long  fince  adjudged^ 
"  (C.  B.  Hill.  22,  23.  Car.  2.)  that  fuch  a  contrad  was  good,  according  to 
*'  the  common  law  of  this  realm,  and  that  on  a  fpecial  verdi6l. '' — This 
method  is  fince  rendered  ineffectual  by  the  a6l  19  Geo.  2.  c.  37. 

3.  All  other  books  that  have  been  publilhed  fince  thofe  above  mentioned, 
are  chiefly  copied  from  them ;  and  although  moll  of  them  have  made 
additions,  and  enlarged  on  the  fubjeft,  yet  they  are  ftill  greatly  defeCiivc,  in 
not  having  cleared  up  one  of  the  main  points,  viz.  how  lenders  fliall  be  dealt 
with  in  cafes  of  average 9—Nox  diXt  there  any  bottomry-bonds  in  Englifli  fo 
well  adapted  to  the  nature  of  trade  as  the  SpaniJJi forms. — As  then  we  ha\e 
no  fixed  laws,  or  rules  univerfally  known  in  England  for  {^nXwig  partial  Lojcs 
on  bottomry-monies,  it  is  the  bufinefs  of  the  parties  to  confider  what  accidents 
they  are  expofed  to,  and  to  have  provifion  made  in  their  bottomry  bonds, 
expreffed  in  a  clear  and  diftinft  manner,  how  they  are  to  be  underftood  : — 
for  inftance  ;  if  amongll  feveral  partners  in  a  fhip,  there  fliould  be  one  diffent- 
ing  from  the  refolutions  of  a  majority  to  fend  her  on  a  vayage,  and  this 
partner  will  not  contribute  his  fliare  of  her  outfet ;  it  is  in  this  cafe  lawful,  in 
almofl  every  country,  for  the  viajler  to  take  up  money  on  bottomry,  to  fupply 
this  deficiency,  if  the  oioncrs  will  ^ot ;  and  tp  pledge  his  whole  fliip  for  the 
Ipau  :  by  which. all  the  concerned  are  engaged,  and  liable  for  the  performance 
of  the  mailer's  promife  to  the  lender;  but  then  if  he  takes  the  money,  fuppofe 
on  one-eighth  part  only  of  the  'fliip,  it  fliould  always  be  explained  in  the 
bottoinr)vbonds,  that  although  the  whole  fliip  be  bound  to  the  lender  for  the 
payment  of  his,  loan,  in  cafe  of  her  fa,fe  arrival,  yet  he  ought  to  run  the  fea 
rifqiie  of  that  one-eighth,  equal  with  any  otker  owner,  and  make  good  his 
part  of  any  average  that  may  happeny  fince  if  he  infUred,  it  would  coll  him  no 
more  than  a  regular  premium  •.—rand  further  v  as  it  is  an  univerfal  law,  that  a 
niafier  cannot  bottomry  his  whole  ibip  at  a  place  where  her  oxvncrs  refide,  but 
on!/  a  particular  fliare  he  may  have  in  her  himfelf ;  it  naturally  follows  from 
\\-hat  has  been  already  mentioned,  that  he  flaould  explain  in  the  bottomry-, 
bond  what  part'  He  holds ;  for  the  lender  has  no  further  fecurity  than  fuch 
fliarQ,  .and  mull,. lin  cafe  of  infufficiency,  take  his  redrefs  againfl  the  perfonal' 
eflaie  of  the  wa/2rr,  the  borrowex.  ro  ^n 

iV — .at  .1  .0  .'J    .2 
•  .4..  .If  tlafe  ;lerider  on' bottomiy  caufes  himfelf    to   be  infurcd,  it  is  to  be 
cohfidered  as  a   rctiii/urance :   and  the  infurers  mull  be  governed,  in  thefe 
cafes,   by  the  ufual  cujiom  of  fuch  contrafts  in  the  countries  M'hcre   they  are 

made,  ^v•luch  greatly  differ. The  judicious   Adrian.  Verzver,  merchant,  af 

Amilerdam, 


BOTTOMRY.  47 

Amfterdam,  avIio  wrote  in  1711,  upon  the  fea  laws,  and  bottomry,  gives  us 
}).  177,  a  declaration  figned  the  17th  of  Sept.  1699,  by  feveral  of  the  moft 
eminent  merchants  of  that  city,  in  the  following  words,  viz.  "  We  the 
"  underwritten  merchants  declare,  that  to  our  knowledge,  it  has  been 
"  the  conftant  cultom  of  this  place,  in  affairs  of  bottomry,  either  concluded, 
"  or  to  be  paid  here,  to  determine,  1 .  that  the  lender  on  bottomry  is  not 
"  obliged  to  contribute  to  any  grofs  average.  2.  That  although  the  goods 
'•  pledged  fliould  by  any  misfortune  be  diminifhed,  but  flill  yield  more  than 
"  the  fum  pledged  for,  the  lender  is  to  receive  his  full  money  ;  in  which  fenfc 
"  this  tranfaftion  has  always  been  underllood  here  ;  wherefore,  if  the  borrower 
"  would  have  any  thing  ftipulated  to  the  contrary,  it  mufl  be  made  a 
"  condition  by  cxprefs  words  in  his  bond  ;  otherwife  the  praftice  is,  as  we 
"  have  before  declared ;  and  we  certify  it  to  have  been  fo  ever  fince  our 
'•'  engaging  in  trade  ;  and  by  tradition  have  learnt  that  it  was  the  fame  in 
"  former  times  :  this  is  what  we  have  praftifed  in  our  own  tranfaftions ;  and 
•'  we  have  never  feen  a  contrary  ufage."— Neverthelefs  the  new  ordinance  of 
Amfherdam,  with  the  note,  or  claufe  to  make  the  infurers  free  only  from 
damage  proceeding  from  the  perilhable  quality  of  the  goods,   feems  to  differ 

from  the  foregoing  declaration. We  find  in  the  old  flatutes  of  Hamburgh, 

of  1603,  tit.  18.  art.  6,  that  no  average  is  to  be  paid  for  bottomry :  but  the 
meaning,  we  prefume,  can  only  have  been,  no  grofs  average,  becaiife  the 
preceding  tit.  i6.  and  17,  treat  folely  of  goods  thrown  overboard;  what  in 
cafes  of  ffranding  is  to  be  firft  faved  ;  how  the  people  that  affift  are  to  be 
rewarded  ;  and  how  the  damages^  of  fliips  running  againft  one  another  ou""ht 

to  be  regulated  :   all  which  relates  to  the  do6lrine  of  grofs  averages. At  a 

meeting  of  the  deputies  of  the  Hanfe  Towns  in  Lubeck,    1591,   fome  fea  laws 

were    made   (from   whence  the  aforefaid  Hambui-gh  ftatute    of  1603   feems 

moflly  to  be  taken)  in  which,  art.  ^6.  of  bottomry  mentions,  that  if  any  perfon 

concerned  in    fitting   out  a   Ihip  fliall  refufe  his  confent  to  a  voyage  agreed 

on  by  a  majority  of  her  owners,  and  deny  paying  for  his  fliare  of  her  o;ut-fet ; 

the  mafter  fliiall  have,  power  to   borrow   money  On  fuch  (hare,   and  pay  the 

principal '  and  preriiium  out  of  it   (without  prejudice  to   any  other  owner) 

{0  far  as  the  (hare  the  faid  perfon  has  in  the  fhip  wi'll  fatisfy  ;    that  is,   he  ^vho 

was  thecaufe  of  the  expen<;e  (liall  make  it  good  out  of  his  private  property. — 

It   feems   as   if  the  rnerchants  of  Hamburgh   werfe  "not   at   that  time   very 

converfant  in'infurances  :    they  knew   that  maffers  of  fliips,  when  they  took 

any  fhare  in  them,  ufed   10  borrow  money  on  bottoi^ry  ;    wherefore  in   tlie 

llatutes  above  mentioned,   of  1603,  tit.   17.  art.    i.   it  is  enafted,   that   "  no 

"  mafter  lliall  take  more  money  on  bottomry,  than  what  his  own  fhare  -will 

anfwer,   at   the   place   where   his    owners    relided ;     and  that  wliofoever 

advances  him  more,   than  what  his  property  will  fatisfy,    fnall  have    no 

redf^fs  but  againft  his  property  and  effefts,   without  any  claim  on  the  other 

owners;" — neveithelefs  a  mafter  was  permitted,   when  in  foreign  parts,  and 

under  diftrefs,  without  credit,   or  acquaintance,   to  take  up  bottomry  both  on 

(hip  and  cargo,  for  fupplying  what  his  Avants  might  require,  either  for  refitting 

or  vic,U\^Uijig  his  fliip,  on  which  both  the  fafety  and  fuccefs  of  his  voyage 

miffht 
o 


48 


BOTTOMRY. 


might  entirely  depend  ;  which  being  for  the  mutual  benefit  of  all  concerned, 
they  are  by  the  faid  aB  mutually  bound  for  :  and  the  captain  agreeing  that 
the  loan  fhould  be/?r^  from  average  by  any  future  accidents,  would  naturally 
obtain  it  on  eafier  terms,  than  he  otherwife  could  have  done  ;  which  circum- 
Itances  probably  gave  rife  to  the  notion  prevailing  in  Holland  and  Hamburgh, 
that  all  loans  on  bottomry  {hould  be  free  from  average :  befides,  we 
apprehend  it  was  not  then  cuftomary  to  carry  on  a  trade  in  goods  by  borrowing 
money  on  bottomry,  or  refpondentia ;  inafmuch  as  the  borrower,  in  order 
not  to  be  ruined  in  cafe  of  an  average,  would  (befides   paying  a  bottomiy 

premium)   be   obliged   to  pay  another  of  infurance  for  averages   only. 

Merchants  in  Holland  and  Hamburgh,  where  the  laws  relating  to  bottomry 
are  deficient,  and  differ  from  thofe  of  other  countries,  when  they  make 
infurances  on  bottomry,  ought  to  weigh  their  own  cafe,  and  explain  in  their 
bond  and  policies  how  they  will  have  it  underflood. 

5,     This  branch  of  bufinefs,  is  bed  underllood  in  Spain  : — the  great  fums 

that  are    required   to  fit  out  a  (hip    for  the    Spanifli  Weft-Indies,   and  for 

obtaining  a  licence  from  court  to  go  with  rcgifter,  rendering  it  neceffary   to 

borrow   money   on  bottomry   in   almoft  every   fuch   expedition ;     and  the 

variation   of  many    circumllances   which  occur,    teaches  their  notaries    to 

provide,  in  their  contra6ls,   for  things  that  people  in  other  countries  do  not 

think  of: — we  find  in  the  form  of  their  bond  this  condition  expreffed,  that  the 

lender  fhall  run,   in  partnerlhip  with  the  owner,  el  riefgo  del  cafco,  la  quilla, 

y  de  los  aprovechamientos  del  navio,  that  is,  "  the  rifk  on  the  hull,  keel,  and 

"  earnings  of  the   fhip  ;"    which  is  faying  a  great  deal  in  few  words.     The 

followino-inftance  will  illuftrate  this : — one  of  thefe  fliips  for  the  Weft-Indies, 

with  all   her  tackle  and  ftorcs,   may  coft  40000   dollars  ;    and  perhaps  the 

licence,  provifions,  and  cafli  advanced  to  the    failors,   may  amount  to  60000 

dollars  more  ;    all  which  muft  be  reimburfed  by  the  freight : — fuppofe  fuch  a 

{hip,  bound  for   La  Vera  Cruz,  had  the  misfortune  to  be  ftranded  at  the 

Canaries  ;    the  whole  cargo,   provifions,    ammunition,  fome  tackle  and  ftores 

faved,  but  the  ftiip  condemned  as  unfit  to  proceed  : — in  this  cafe  the   lender 

of  money  on  bottomry,  "  on  the  hull, .  keel,   and  earnings  of  the  ftiip,"   would 

not  only  be  entitled  to  a  proportion  of  the  falvage  of  the  ftores  and  provifions, 

but  alfo  to  a  pro  rata  of  the  value  of  the  licence,   which  might  be   givein  to 

another  vcffel,   to  carry  the  things  fiived  to   the   place  for  which  they  were 

primarily  defigned  : — what  that  proportion  ought  to  be,  would  be  difficult  to 

any  other  than  a  Spaniard,  expert  in  thefe  calculations    and  navigation,  to 

determine  ;   for  the  queftion  would  turn,  on  what  w^ould  have  been  the  neat 

earnings,  gain,   or  freight  of  the  fliip  condemned  ?    and  the  knowledge  of  the 

coft  of  Ihip,   licence,  &c.   would  not  be  fufficient,   becaufe  her  owner  out  of 

the  falvage  of  licence  and  provifions,  ought  to  receive  proportionably  to  the 

coft  of  his  ftiip,  and  what  her  earnings  would  have  yielded  net    (if  ftie  had 

arrived  fafe  at  her  deftincd  port)  more  than  what  he  took  upon  bottomry,   or 

had  infured  thereupon  ;    or   what  the  whole  ftood  him  in. — Hence  it  appears, 

that  although  fuch  a  fhip  may  have  been  infured,  and  valued  in  a  policy,  yet 

when 


BOTTOMRY.  49 

when  the  lofs  is  not  total,  the  valuation  fliould  be  ftriftly  enquired  into  :  for 
we  are  of  opinion  that  the  infurers,  if  the  veffel's  lofs  he  not  total,  have 
certainly  a  right  to  claim  their  proportion  of  falvagc,  under  whatever  name 
it  may  have  been  difguifed. — The  following  cafe  will,  we  apprehend,  fully  ' 
prove  our  alTertion. — A  Spanilh  regifter-fhip  was  condemned  not  long  ago, 
at  tlie  Canaries,  as  unfit  to  purfue  her  voyage  : — her  cargo  was  all  faved  ;  and 
the  Spaniards  concerned  in  her  allowed  the  Englifli  underwriters  the  benefit 
of  xh^falvage  of  her  regifter,  8cc.  though  they  had  engaged  on  the  terms  of 
intcrcji  or  no  interejt ;   only  charging  them  with  what  was  really  loft  of  the 

{hip. We  fhall  add,   by  way  of  remark,  that  the  Spanifh  bottomry-bonds 

are  direftly  inconfiftent,  in  a  very  efiential  point,  with  the  views  either  of 
the  borrower  or  lender ;  for  they  declare  that  the  rifk  fhall  end  in  twenty- 
four  hours  after  the  fliip's  arrival  : — rnow  it  is  impoflible  to  unload  her  in  fo 
fhort  a  time ;  and  'till  fhe  is  difcharged,  neither  the  freight,  nor  earnings, 
on  which  the  lender  in  part  runs  the   ri(k,  and  out  of  which  the  borrower 

could  only  have  wherewith  to    pay,  can  be    faid  to  be   out   of  danger. • 

Therefore  bottomry -bonds,  and  all  policies  of  infurance  made  wponjhip  and 
freight,   fiiould  fpecify  the  rilk  not  to  end  'till  a  certain  number  of  days  after 

arrival ;    and  when  upon  goods,   not  'till  after  they  are  fafely  landed.- It  is 

likewife  a  law  in  Spain,  that  whoever  furnifliedthe  money  para  el  ultimo  avio-, 
that  is,  thofe  who  can  make  it  appear  that  the  fhip  could  not  have  proceeded 
on  her  voyage  without  receiving  this  lafl  money,  has  a  right  againft  the  Ihip 
to  recover,  preferable  to  all  other  bottomry-creditors :  nor  can  any  thing  be 
more  reafonable,  fince  for  want  of  this  laft  loan,  or  affiftance,  their  joint 
pledge,  which  is  the  fliipj  &c.  might  have  lain  and  rotted,  or  they  muft 
have  raifed  the  money  amongft  them : — neverthelefs  it  is  not  enough  to 
declare,  or  exprefs  in  the  bottomry-bond,  to  be  for  money  lent  for  her  la^ 
fitting  out,  becaufe  all  bonds  may  contain  that  particular ;  but  it  muft  b6 
proved  before  the  Confulado,  or  court  of  judicature,  that  in  faB  it  was  fd 
lent,  and  given  under  the  fanftion  and  cognizance  of  the  court. 

6.  When  a  fliip  in  diftrefs  is  forced  into  any  port,  where  her  owners  have 
no  correfpondents  to  fupply  the  mafter  with  the  money  neceffary  to  enable 
him  to  profecutehis  voyage,  he  may  take  it  on  bottomry  from  thofe  who  will 
advance  it  on  the  eafieft  terms ;  and  pledge  his  whole  fhip,  with  her  freight, 
tackle,  furniture,  and  appurtenances,  for  the  payment : — but  it  is  not 
fufficient  that  the  mafter  tell  the  lender,  and  exprefs  it  in  his  bottomry -bond, 
that  fuch  a  fum  was  neceffary  ;  the  latter  fliould  always  (for  his  own  fecurity, 
fatisfaftion,  and  juftification)  have  a  proper  furvey,  and  enquiry  made,  by 
experienced  and  impartial  perfons,  how  far  his  allegations  were  true ;  and 
the  refult  of  their  perquifitions  fhould  be  certified,  or  attefted  before  fome 
magiftrate,  or  juftice  of  peace  : — moreover  it  is  highly  expedient  that  thefe 
repairs  or  provifions,  which  may  have  been  deemed  neceffary,  fhould  be 
certified  and  attefted  as  above  to  have  been  made  and  fhipped  ;  for  although 
fuch  particular  fteps  are  not  prefcribed  by  any  law,  yet  reafon  dictates  that 
they  fhould  be  taken;  and  as  the  perfon  who  affills  a  mafter  with  money  on 

O  bottomry 


go  BOTTOMRY. 

bottomry  generally  charges  acommilTion  upon  it,  they  are  obliged  in  honour 
to  fee  jullice  done  to  the  abfent  owners. — i  Mag.  19,  and  ante. 

7.  By  Stat.  ig.  Ceo.  2.  c.  37.  f.  5. — All  money  to  be  lent  on  bottomry, 
or  at  refpondentia,  upon  any  Ihip  belonging  to  any  of  his  majefty's  fubjetls 
bound  to  or  from  the  Eajl-Indies,  (hall  be  lent  only  on  the  (hip,  or  on  the 
effefcls  on  board  fuch  fhip,  and  (hall  be  fo  exprelfed  in  the  condition  of  the 
bond,  and  the  benefit  o^falvage  fhall  be  allowed  to  the  lender,  his  agents  or 
alTigns,  who  alone Jliall  have  a  right  to  make  ajfurance  on  the  money  fo  lent, 
and  no  borrower  on  bottomry,  or  at  refpondentia,  fliall  recover  more  on 
any  affurance  than  the  value  of  his  intercfl  on  the  fliip,  or  in  the  effefts  on 
board  exclufive  of  the  money  fo  borrowed ;  and  in  cafe  it  appear  that  the 
value  of  his  fliare  in  the  fhip  or  effefts  doth  not  amount  to  the  fum  he  hath 
borrowed,  he  fliall  be  refponfible  to  the  lender  for  fo  much  thereof  as  he  hath 
not  laid  out  on  the  fhip  or  merchandifes  laden  thereon,  with  interefl  for 
the  fame,  together  with  the  affurance  and  all  other  charges  thereon,  in  the 
proportion  the  money  not  laid  out  bears  to  the  whole  money  lent,  notwith- 

ftanding  the    fliip  and  merchandifes  be  totally  loft. S.  6. — In  all  aftions 

brought  by  the  affured  upon  any  policy  of  affurance,  the  plaintiff  or  his 
agent  fliall,  within  fifteen  days  after  he  is  required  fo  to  do  in  writing  by  the 
defendant  or  his  agent,  declare  in  writing  what  fum  he  hath  affured  in  the 
whole,  and  what  fums  he  hath  borrowed  at  refpondentia^  or  bottomry,  for  the 
voyage,  or  any  part  of  the  voyage  in  queftion. 

8.  Case. — The  defendant  had  lent  300I.  on  a  bottomr}^-bond,  and 
afterwards  infured  450I.  on  that  fliip  with  the  plaintiff,  for  6  guineas  per  cent, 
premium,  as  interefl  for  money  lent,  &c. : — the  fliip  out  lived  the  time  at 
which  the  money  was  payable,  and  afterwards  was  loft  in  the  Eaft-Indies  : — 
the  defendant  recovered  the  money  on  the  bottomry-bond,  and  afterwards 
fued  the  infurcrs  upon  the  policy  ;  who  brought  their  bill  to  be  relieved,  for 
that  the  money  infured  by  the  policy  was  the  money  lent  upon  the  bottomry, 
and  that  the  defendant  was  no  otherwife  intercjied  in  the  fliip  ;  and  that  the 
money  being  paid,  no  ufe  ought  to  be  made  of  the  policy. — The  court 
decreed  the  policy  to  be  delivered  up. — 2  Equ.  Abr.  371.  Trin.  1692. 
— Goddart  v.  Garret. 

9.  Case. — It  was  held,  that  a  perfon  having  no  mfer^  but  his  bottomry- 
bond,  cannot  infure ;  and  that  a  perfon  who  has  no  intereft  in  the  fhip  or 
cargo  cannot  infure,  though  the  policy  was  interejled  or  not ;  but  infurances 
are  for  the  benefit  of  traders  only,  not  that  others  unconcerned  fhould  make 
unreafonable  gain. — S.  C.  2  Vern.  269. 

10.  Case. — Where  the  defendant  lent  the  plaintiff  250I.  on  a  bottomry- 
bond,  and  afterwards  infured  on  the  {dimtjfup  ;  but  the  infurance  was  larger 
as  to  the  voyage,  there  being  liberty  to  go  to  other  ports  and  places  than  what 
were  contained  in  the  condition  of  the  bottomry-bond : — the  fliip  being  loft, 

the 


BOTTOMRY.  51 

the  defendant  recovered  the  money  on  the  policy  of  infurance,  and  alfo  put 
the  bottomry-bond  in  fuit : — the  fhip,  though  loft,  having  deviated  from  the 
voyage  mentioned  in  the  bond,  the  plaintiff  brought  his  bill,  pretending  the 
defendant  ought  not  to  recover  both  ori  the  infurance,  and  alfo  on  the  bond, 
he  having  infured  only  in  refpeft  of  the  money  he  had  lent  on  the  bottomry  : — 
and  therefore  the  plaintiff  would  have  had  the  benefit  of  the  infurance  paying 
die  premium  ; — but  the  court  held,  that  the  defendant  having  paid  the 
premium  was  intitled  to  the  benefit  of  the  policy  ;  and  the  infurers  might  as 
well  pretend  to  have  aid  of  the  bottomry -bond,  and  to  difcount  the  money 
recovered  thereon,  as  the  plaintiff  to  have  the  money  recovered  on  the  policy 
to  eafe  the  bottomry-bond. — Mich.  1716. — Harman  v.  Vanhatten.  2.  Ver7i.  717, 

11.  Case. — The  plaintiff  entered  into  a  penal  bond  of  bottomry  to  pay  40s. 
per  month  for  50I :  the  fhip  was  to  go  from  Holland  to  the  Spanifh  iflands, 
and  to  return  for  England  ;  but  if  (lie  perifhed,  the  defendant  was  to  lofe  his 
50I.  : — (he  went  accordingly  to  the  Spanifli  iflands,  took  in  Moors  at  Africa, 
and  upon  that  occafion  went  to  Barbadoes,  and  then  periffied  at  fea  : — the 
plaintiff,  being  fued  on  the  bond  and  penalty,  pretended  that  the  deviation 
was  on  neceffity  : — but  his  bill  was  difmiffed,  faving  as  to  the  penalty. — 
2  Chan.  c.  130. — 2  Salk..  444. 

12.  Case. — I.  S.  entered  into  a  bottomry -bond,  whereby  he  bound  himfelf^" 
in  confideration  of  400I.  as  well  to  perform  the  voyage  within  fix  months,  as 
at  the  fix  months  end  to  pay  400I.  and  40I.  premium,  in  cafe  the  veffel 
arrived  fafe,  and  was  not  loft  in  the  voyage  ; — and  it  fell  out  that  I.  S.  never 
went  the  voyage,  whereby  his  bond  became  forfeited ;  and  he  preferred  a 
bill  to  be  relieved :  and  in  regard  the  fhip  lay  all  along  in  the  port  of 
London,  and  fo  the  defendant  run  no  hazard  of  lofing  his  principal,  the 
lord  keeper  thought  fit  to  decree,  that  the  defendant  fliould  lofe  the  premium 
of  40I.  and  be  contented  with  his  ordinary  intereft. — Mich.  1684. — Deguilder 
v.  Depeijier. — 1  Vern.  263. 

13.  Case. — A  part-owner  of  aftiip  borrowed  money  of  the  plaintiff  upon 
bottomry-bond,  payable  on  the  return  of  the  fhip  from  the  voyage  fhe  was 
then  going  in  the  fervice  of  the  Eaft-India  company  ;  and  the  Eaft-India 
company  broke  i\p  the  fliip  in  the  Indies  ;  and  the  owners  brought  their  aftion 
againft  the  company,  and  recovered  damages  ;  but  they  did  not  amount  to 
a  full  fatisfaftion : — and  the  obligee  brought  his  bill,  to  have  his  propor- 
tionable fatisfaftion  out  of  the  money  recovered  ;  but  his  bill  was  difmilfcd, 
and  he  left  to  recover  as  well  as  he  could  at  law  ;  for  a  court  of  equity  will 
never  affift  a  bottomry-bond  which  carries  an  unreafonable  intereft. — Mich. 
1701. — Dandy  v.  Turner. — 1  Equ.  Abr.  372. 

14.  Case. — Bill  to  be  relieved  againft  a  bottomry-bond  with  condition 
that  if  the  fliip  S.  bound  to  the  Eaft-Indies,  fhall  return  to  L.  within  thirty-fix 
months  -,    or  if  ftie  does  not  return  within  thirty-fix  months,  not  being  taken 

or 


^2  B    O    T    T    O    M    R    Y. 

or  loft  by  inevitable  accidents  within  that  time,  then  the    money  to  be  paid, 

&c. : the  fliip  was  detained  in  port  Sural  in  India  by  evibargo,  by  tlie  Great 

Mogul,  fo  that  (he  could  not  fail  from  Sural  'till  after  the  thirty-fix  months 
were  elapfed,  and  in  her  return  home  was  taken  by  the  French  ;  but,  being 
after  the  thirty-fix  months,  the  bond  was  forfeited  :  bpt  there  being  no  fault 
in  the  mailer,  and  the  voyage  delayed  by  inevitable  accident,  viz.  by  the  faid 
embargo,  the  bill  prayed  to  be  relieved  againft  the  penalty  of  the  bond. — 
Harcourt  C.  difmiffed  the  bill,  but  without  cofts,  faying,  he  could  not  reJiev^ 
againft  the  exprefs  agreement  of  the  parties  ;  but  if  the  defendant  had  infure4 
this  money  upon  iheJJiip,  the  plaintiff  fliould  have  the  benefit  of  the  infurance„ 
upon  allowing  the  defendant  the  charges  of  the  infurance,  if  the  plaintiff  pay$ 
the  money  within  three  months. — Vin.  Abr. — Tit.  Eoit.  Bonds  (A)  cap.  9. 

15.  Case. — Debt  upon  an  obligation  with  condition  to  pay  fo  much 
money  (which  was  more  by  a  third  part  than  the  legal  intereft  of  the  money) 
if  a  ftiip  returned  within  fix  months,  from  Oftend  in  Flanders  to  London  ;  and 
if  fhe  did  not  return,  then  the  obligation  to  be  void: — the  defendant  pleaded, 
that  there  was  a  corrupt  fl^rf^7?i^?zi  between  him  and  the  plaintiff ;  and  that 
at  the  time  of  making  of  the  obligation,  it  was  agreed  he  fhould  have  no  more 
for  intereft  than  the  law  allowed,  in  cafe  the  fhip  fliould  ever  return  ;  and 
avers  that  the  bond  was  entered  into  by  covin,  to  avoid  the  ftatute  of  iifury. 
— Per  Hale  ;  clearly,  this  bond  is  not  within  the  ftatute  ;  for  this  is  the 
common  way  of  infurance ;  and  if  this  were  void  by  the  ftatute  of  ufury, 
trade  would  be  deftroyed  ;  for  it  is  a  cafualty  whether  ever  fuch  a  fhip  fliall 
return  or  not : — ^but  he  agreed  the  averment  was  well  taken,  becaufe  it 
difclofed  the  manner  of  the  agreement. — Hardres  418. — Joy  v.  Kent.—' 
Molloy,  b.  2.  c.  7.  f.  12. 

16.  Case. — Where  A.  lends  B.  lool.  to  freight  a  fliip  abroad,  and  they 
agree  that  if  the  fliip  comes  home  fafe,  A.  fhall  have  150I.  and  that  if  fhe  do 
not,  that  he  fhall  lofe  the  lOol. — this  is  not  ufury,  but  good  by  the  cuftom  of 
merchants ;  becaufe  of  the  great  perils  of  the  fea,  and  both  principal  and 
intereft  run  the  fame  hazard  of  being  loft; — but  if  the  principal  be  fecured, 
and  the  interejl  only  depends  on  hazard,  if  it  be  more  than  is  lawful,  it  is 
ufury. — 2  RoL  Rep.  48. — ^5  Co.  70,  &c. — Cro.Jac.  208,  508. — 1  Keb.  539,  711. 

ij.  Case. — So  where  the  condition  of  a  bottomry-bond  was,  that  if  the 
obligor,  or  the  fliip,  or  the  goods  return  fafe,  then  to  pay  more  than  the  legal 
intereft : — this  was  adjudged  good  by  the  cuftom  of  merchants,  though  it 
depends  on  many  contingencies  ;  and  though  the  obligee  may  be  faid  to  run 
little  hazard  ;  and  though  any  of  the  contingencies  become  impoffible,  as  if 
the  obligor  die  before  his  return,  &c.  yet  the  bond  remains  payable,  contrary 
to  the  general  rule  of  law  in  fuch  cafes  ;  for  the  law  fupplies  thefe  words, 
-which Jliallfirji  happen,  and  foreclofes  the  eledion  of  the  obligor,  and  gives  it 
to  the  obligee  to  take  his,  on  which  of  the  contingencies  fliall  firft  happen. — 
1  Lev.  54. — 1  Sid.  27. 

18.    Case.. 


I 


B    O    T    T    O    M    R    Y. 


Do 


18.  Case. — A  fhip  going  in  the  fifhing  trade  to  Newfoundland  (which 
voyage  muft  be  performed  in  eight  months)  the  plaintiff  gave  the  defendant 
50I.  to  repay  60I.  upon  the  return  of  the  (hip  to  Dartmouth  ;  and  if  by  leakage 
or  tempeft  (he  fliould  not  return  in  eight  months,  then  to  pay  the  principal 
money  only  ;  and  if  fhe  never  returned,  then  he  fliould  pay  nothing : — all  the 
court  held,  that  this  is  no  ufury  within  the  ftatute ;  for  if  the  fhip  had 
ftaid  at  Newfoundland  two  or  three  years,  he  was  to  pay  but  60I.  upon  the 
return  of  the  fhip  ;  and  if  fhe  never  return,  then  nothing ;  fo  that  the  plaintiff 
run  a  hazard  of  having  lefs  than  the  interefl  which  the  law  allows,  and 
poffibly  neither  principal  nor  interefl. — Cro.  J.  208. — Sharplcy  v.  SturreL 
S.  C.  cited  by  Doderidge,  J.  Cro.  J.  508,  509.  by  the  name  of  Dartmoutlis 
cafe,  where  one  went  to  Newfoundland,  and  another  lent  him  lool.  for  a 
year,  to  viftual  his  fhip;  and  if  he  returned  with  the  fhip,  he  was  to  have  fo 
many  thoufand  of  fifli,  and  expreffed  at  what  rate,  which  exceeded  the  intereft 
allowed  by  the  ftatute  ;  and  if  he  did  not  return  then,  he  fhould  lofe  his 
principal,  and  adjudged  no  ufury. — Vin,  Ahr.  Tit.  Eott,  Bonds  (A). 

ig.  Case. — Debt  upon  a  bond  of  300I,  conditioned  that  iffuchafhip 
failed  to  Surat  in  the  Eaft-Indies,  and  returned  fafe  to  London,  or  if  the  owiter 
and  his  goods  returned  fafe,  &c.  the  defendant  fhould  pay  to  the  plaintiff  the 
principal  fum  of  300I.  and  alfo  40I.  for  every  tool. :  but  if  the  fhip  fhould 
perifh  by  any  unavoidable  cafualty  of  the  fea,  fire,  or  enemies,  to  be  proved 
by  fufhcient  evidence,  then  the  plaintiff  was  to  have  nothing  : — the  queftion 
was.  Whether  this  was  an  ufurious  contrati;  ? — Adjudged  that  it  was  not,  and 
that  it  was  a  good  bottomry  contraft. — Bridgeman  C.  J.  diftinguiflied  between 
a  bargain  and  a  loan ;  for  if  the  bargain  is  plain,  and  the  principal  is  in 
hazard,  it  cannot  be  faid  within  the  ftatute  of  ufury  ;  but  it  is  otherwife  of  a 
loan,  where  it  is  intended  that  the  principal  is  in  no  hazard  ;  and  adjudged 
per  tot.  cur.  for  the  plaintiff,  that  this  contraft  is  not  ufurious. — Sid.  27. 
PI.  8.  Hill.  12.  Car.  2.  C.  B.—Soome  v.  Gkem.—Vin.  Abr.  Tit.  Bott. 
Bonds  (A  2). 

20.  Nobody  (hall  take  or  afk  any  money  upon  the  bottom  of  the  fliip 
(commonly  called  bottomree  or  exchange  upon  the  hull,  or  keel  of  the  fhip) 
for  himfelf,  or  in  behalf  of  another,  direftly  or  indireftly,  unlefs  the  mafter 
of  any  veflel  fliould,  by  any  misfortune  at  fea,  enemies,  or  other  unavoid- 
able accident  (whereof  he  fhall  be  obliged  to  produce  proper  certificates) 
ftand  in  want  in  di  foreign  country,  where  he  could  not  difpofe  of  any  goods 
in  a  regular  way ;  in  w^hich  cafe  he  may  take  upon  the  bottom  of  his  fliip,  by 
way  of  bottomry  or  otherwife,  the  quarter  part  of  the  value  of  fuch  bottom, 
and  no  more,  unlefs  neceffity  oblige  him  to  take  a  larger  fum  than  the  afore- 
faid  quarter  part  of  the  value,  in  which  cafe  he  may  take  fuch  further  fum  on 
bottomry,  as  aforefaid,  provided  he  makes  the  neceffity  thereof  appear  as 
above  mentioned :  neither  fhall  he  expofe  to  fale,  or  alienate,  any  goods  on 
board  of  fuch  veflel,  as  long  as  he  can  find  bills  of  exchange,  or  bottomry, 
upon  the  bottom  of  fuch  veflel,  as  aforefaid  ;    and,  even  not  finding  that,  he 

P  may 


,1  C    O    T    T    O    M    R    Y. 

may  not  fell  more  of  fuch  merchandife  than  a  quarter  part  of  the  value  of  the 
faid  veflel,  unlefs  upon  the  greateft  emergency,  a^  aforefaid  ;  and  then  he  fliall 
be  oblicred  to  pay  to  the  merchant,  to  whom  fuch  goods  did  belong,  the  price 
which  they  would  have  fetched  at  the  place  for  which  they  were  defigned  and 
{liipped ;  the  faid  merchant  in  that  cafe  paying  him  his  full  freight,  as  well  for 
the  goods  fo  fold  by  the  way,  as  aforefaid,  as  for  thofe  unfold ;  on  penalty,  if 
the  mailer  fliould  aft  to  the  contrary,  that  he  fliall  make  good  to  his  owners, 
fellow-owners,  and  merchants,  the  damage  they  fliall  fuftain,  and  be  arbitrarily 
punifhed  befides. — Ordin.  of  Antw. 

21.  The  money  taken  on  bottomry,  or  the  fale  of  goods,  fhall  not  amount 
to  above  one  eighth  part  of  the  value  of  fliip  and  cargo,  unlefs  in  cafes  of  the 
utmofl:  neceflity  : — all  mailers  afting  to  the  contrary  in  this  refpeft,  fliall  be 
liable  to  make  good  the  damage  to  the  owners  and  merchants,  or  even  to  be 
arbitrarily  correfted  or  puniflied,   according  to  the  circumftances  of  the  cafe. 

— Ordin.  of  Rett. Infurance  made  on  bottomry  or  goods  '\%  free  of  all 

grofs  average,  and  diminution  of  value  by  their  own  wafte. — The  infured,  on 
being  paid  a  lofs,  muft  make  over  to  the  infurer  all  claim  on  the  taker  on 
bgttomry,  and  deliver  up  to  him  the  writings. — Ordin.  of  Anift. 

22.  Money  on  bottomry  maybe  given  on  the  hull  and  keel  of  the  fliip, 
tackle  and  apparel,  fitting  out,  viclualling,  jointly  or  feparately,  on  the  whole 
or  on  part  of  her  cargo,  for  the  whole  voyage,  or  for  a  limited  time. — We 
declare  unlawful  the  taking  money  upon  bottomry  on  the  hull,  keel,  or  cargo 
of  a  fliip,  beyond  her  value ;  under  the  penalty  of  paying,  even  in  cafe  of 
the  lofs  or  capture  of  the  veflel,  the  Avhole  of  the  fum  borrowed. — We 
prohibit  under  like  penalty  the  taking  money  upon  bottomry  on  the  freight 
the  fliip  is  to  make,  and  on  the  expefted  profit  on  goods ;  even  upon  the  zoages 
or  hire  of  feamen,  except  in  the  prefence  and  with  the  confent  of  the  mafter, 
and  then  it  mufl  be  for  lefs  than  the  half  of  the  wages : — and  we  exprefsly 
prohibit  all  perfons  giving  money  on  bottomry  to  feamen,  on  their  wages,  or 
on  the  voyage,  except  with  the  confent  and  in  the  prefence  of  the  mafter, 
under  the  penalty  of  the  confifcation  of  the  loan,  and  of  fifty  livres. — 'The 
mafters  fliall  themfelves  be  anfwerable  for  the  whole  of  the  fums  taken  with 
their  confent  by  the  feamen,  if  thofe  fums  exceed  the  half  of  their  wages,  and 
this  notwiihftanding  the  lofs  or  capture  of  the  fliip. — The  veflel,  her  tackle, 
apparel,  fitting  out,  and  viftualling,  even  the  freight,  fliall  be  particularly  liable 
to,  and  anfwerable  for,  both  principal  and  intereft  of  money  on  bottomry 
given  on  the  hull  and  keel  of  the  ftiip,  for  the  profccuting  and  furthering  of 
the  voyage.     The  cargo  fliall  on  it's  part  be  anfwerable  for  money  borrowed 

for  it's  benefit. Thofe  who  fliall  lend  money  on  bottomry  to  a  mafter  at  a 

place  where  his  owners  refide,  without  their  confent,  fliall  not  be  privileged 
or  advantaged  for  the  fame,  for  more  than  the  fliare  of  the  mafter  in  the 
veffel  and  freight,  though  the  contrafls  were  made  for  refitting  and  viftualling 
of  the  fliip. — However  the  fhares,  or  parts,  belonging  to  owners  who  fliall  have 
lefufed  to  contribute  towards  the  repair  of  the  veflel,  fliall  be  anfwerable  for 

their 


BOTTOMRY. 


65 


their  quotas  of  the  money  taken  up  by  the  mafter  for  refitting  and  viftualling. 
— Thofe  monies  continued  on  as  a  loan,  or  renewed  on  bottomry  on  any 
voyage,  fliall  not  enter  into  competition  with  what  fhall  have  been  lajl  lent 
for  the  immediate  fervice  of  the  voyage, — ^AIl  bottomry  contrafts  become 
void  through  the  entire  lofs  of  thofe  effefts  on  which  the  loan  has  been  made, 
provided  it  happen  by  accident,  and  in  thofe  places,  or  within  the  time 
ftipulated  by  thofe  contrafls. — That  which  may  proceed  from  the  perifliable 
quality  of  any  thing,  or  through  the  aft  or  deed  of  the  owner,  mafter,  or 
fhippers,  fhall  not  be  reputed  accident,  except  otherwife  ftipulated  by  the 
contraft. — If  the  time  the  rifque  is  to  continue,  be  not  ftipulated  by  the 
contraft,  with  regard  to  the  veflel,  tackle,  apparel,  and  viftualling,  it  fhall 
begin  and  run  from  the  day  flie  ftiall  have  failed,  'till  flie  be  at  anchor  at  her 
intended  port,  and  there  moored  to  the  key.  And  as  to  the  goods,  the  rifque 
runs  from  the  time  of  their  being  ftiipped,  or  in  the  lighters  to  carry  them  on 
board,  until  they  are  landed. — Any  one  fliipping  of  goods  and  taking  up 
money  at  bottomry  on  them,  though  the  fhip  and  goods  be  loft,  fiiall  not  be 
freed  from  his  contraft,  except  he  prove  that  he  had  effefts  to  the  amount  of 
the  fum  he  borrowed. — If  however  the  borrower  can  prove  that  he  could  not 
ftiip  for  the  value  of  the  fums  taken  on  bottomry,  the  contraft,  in  cafe  of  lofs, 
ftiall  be  reduced  in  proportion  to  the  value  of  the  effefts  laden,  and  fliall  only 
hold  good  for  the  overplus  ;  for  which  the  borrower  fliall  pay  intereft, 
according  to  the  courfe  of  the  place  where  the  contraft  was  made,  until  the 
whole  principal  be  paid  :  on  the  other  hand,  if  the  fliip  arrive  fafe,  the  current 
intereft,  and  not  the  maritime  premium,  fhall  be  due  on  what  was  borrowed 
more  than  what  was  aftually  fliipped. — Lenders  on  bottomry,  and  not  the 
borrower,  fliall  contribute  to  grofs  averages,  fuch  as  ranfoms,  contributions, 
jettifons,  the  cutting  away  mafts  and  rigging  for  the  common  fafety  of  the 
fliip  and  goods  ;  but  not  to  Ample  averages,  or  particular  damage,  which  may 
happen,  except  it  be  particularly  ftipulated. — Contrafts  on  bottomry  fliall 
neverthelefs  be  anfwerable  for  the  value  of  goods  faved  from  fliipwreck. — 
If  on  the  fame  cargo  there  be  a  bottomry  contraft,  and  alfo  an  infiirance 
made  thereon,  the  lender  on  bottomry  fliall  have  the  preference  of  the  infurers 
on  the  effecls  that  may  h&  faved,  only  for  his  capital. — We  exprefsly  forbid 
thofe  who  may  take  up  money  on  bottomry,  to  have  infurance  made  thereon  ; 
under  the  penalty  of  the  fame  being  declared  invalid,  and  of  corporal  punifli- 
ment.  The  lenders  on  bottomry,  under  the  fame  penalty,  fliall  not  infure 
xht  profit  on  the  fum  lent. — Ordin.  of  France. 

23.  The  creditor  or  lender  of  bottomry  money  fliall  be  allowed  to  infure 
his  capital  lent,  together  with  the  premium  paid  the  infurer,  but  not  the 
ftipulated  agio,  or  other  profits  of  the  bottomry  ;  but  infurances  made  by  the 
debtor,  or  borrower  on  bottomry,  on  the  fame  goods  and  ftiips  fo  bottomried, 
fliall  be  of  no  effeft,  but  void  and  punifliable. — He  who  advances  on  bottomry, 
that  is,  lays  down  either  ready  money,  or  value  of  it,  on  a  fliip  or  goods 
fliipped,  under  obligation  that  if  the  fame  fliall  be  loft,  he  fliall  alfo  lofe  his 
depofit,  without  claim  or  return;  fliall  be  allowed  to  contraft  for  as  high  an 

inter  ejh 


^5  B    O     f    T    O    M    R    y, 

interejl  as  he  and  the  borrower  can  agree  upon. — Ih  the  contraft,  and  Hkewife 
in  the  whole  procedure  relating  to  bottomry,  the  contrafting  parties,  parti- 
cularly the  mailer  of  the  fhip,  and  the  broker  who  may  be  employed  in 
tranfafting  the  contraft,  fhall,  on  the  penalty  of  fevere  punilh'ment  in  goods, 
body,  or  character,  together  whh  reparation  of  all  damages  occalioned 
thereby,  proceed  juftly  and  uprightly,  without  fraud,  and  not  infidioully 
draw  in  any  one  to  advance  money,  or  any  thing  elfe,  on  a  deceitful 
bottomry. — No  majler  of  a  fhip  ftiall  be  allowed  to  contraft  any  bottomry- 
debts  upon  his  fliip  at  places  where  any  of  his  owners  are,  without  their 
confent  -,  but  he  himfelf  having  a  fliare  in  the  fliip,  he  is  at  liberty  to  mortgage 
that,  yet  with  the  privity  of  the  other  owners  ;  alfo  in  cafe  one  or  more  of  the 
owners  refufe  to  lay  down  their  fliares  towards  fitting  out  the  fhip. — Where 
the  bottomried  fhip  is  lofl  or  damaged,  not  by  accident,  but  the  fault  of  the 
oxuner,  viajler,  and  his  company,  or  otherwife  ;  as  where  the  mafler,  without 
the  knowledge  or  confent  of  the  lender,  or  by  or  without  the  owner's  order, 
alters  his  voyage,  or  carries  prohibited  goods,  and  any  damage  is  occafioned 
thereby ;  the  lender  may  feek  his  redrefs  from  what  may  remain  of  the  fhip 
as  far  as  it  will  go,  and  likewife  from  thofe  who  are  in  fault,  and  not  from  the 
owner  or  mafter,  any  further  than  the  damage  or  lofs  can  be  imputed  to 
them. — The  like  to  be  obferved  concerning  any  bottomried  goods  damaged  or 
lofl,  through  the  fault  of  any  one  ;  but  in  cafe  the  damage  or  lofs  arifes  from 
their  own  natural  decay,  or  the  fall  of  the  price,  and  thus  are  not  equivalent 
to  the  bottomry,  the  proprietors  fliall  not  be  entitled  to  compenfation  by 
celhon,  or  legal  fale,  but  mull  duly  ftand  to  the  contraft. — The  borrower  on 
bottomry,  whether  mafler  or  owner,  being  convifted  of  defrauding  the 
creditor,  either  by  damaging,  or  embezzling  the  goods,  or  of  prejudicing 
him  in  any  other  refpeft,  fhall,  behdes  other  punifhments,  pay  the  whole 
bottomry  debt,  together  with  all  other  charges  and  damages  which  can  be 
proved  ;  and  this  even  although  the  bottomried  fhip  or  goods  fhall  be  lofl  by 
any  fea  misfortunes,  or  in  any  other  manner  whatever. — Where  a  fhip  or 
goods  are  mortgaged  to  more  than  one  bottomry-lender,  the  lafi  bond  fhall 
be  paid  before  others.  But  two  or  more  bottomry-bonds,  although  of  differ- 
ent dates,  executed  at  the  fame  place  and  time,  within  three  days,  fliall  have 
an  equal  right  in  refpefl:  of  payment. — Ordin.  of'  Konigjb. 

Q.\.  The  lender  may  make  his  infurance  to  the  full  for  principal,  interefl, 
and  premium. — Whoever  infures  upon  bottomry,  is  free  from  all  average, 
and  not  liable  to  contribute  thereunto. — Ordin.  of  Hamb. — See  4. 

25.  No  perfou  may  get  the  fum  infured  that  he  fhall  take  on  bottomry, 
on  pain  of  nullity  ;  but  the  perfon  or  perfons  that  fhall  lend  it,  may,  for  the 
bare  fum  which  they  fhall  have  advanced,  without  including  the  premiums 
that  they  hstve  received  for  it,  under  the  fame  penalty. — No  more  than  three 
quarter  parts  of  it's  value  may,  for  any  motive,  be  taken  at  bottomry  on 
the  body,  and  keel  of  the  fliip,  appraifing  it  by  fkilful  men,  named  by  the 
borrower,  and  lender ;  on  penalty  that  on  adingto  the  contrary,  and  it  being 

oppofed 


BOTTOMRY. 


57 


oppofed  by  either  of  the  two,  it  (liall  not  be  Iieard,  nor  admitted  in 
judgment. — In  regard  that  all  jettifons,  ranfoms,  compofitions  of  fhips,  mafts 
and  rigging  cut  away  for  the  common  good  of  fliip  and  cargo,  and  whatever 
elfe  is  comprehended  in  a  grofs  average,  always  refults  to  the  advantage  of 
him  who  (hall  have  given  money  on  them  at  bottomry  ;  it  is  ordained,  that 
he,  or  they  ought  to  contribute  in  thefe  cafes  to  the  payment  of  the  pro  rata 
that  (hall  touch  them,  but  not  to  Jingle  averages,  unlefs  the  contrary  fliall 
have  been  agreed  on  in  the  inflrument,  or  contraft. — A  wreck  happening  of 
fliip  and  goods,  upon  which  part  of  the  value  was  given  at  bottomry  ;  and 
the  whole,  or  part  of  her,  or  them  hcmg  faved ;  in  this  cafe,  it  is  ordained 
that  thofe  who  advanced  it,  fliall  inherit  and  receive  in  proportion  with  the 
concerned  of  the  faid  things  faved,  according  to  the  fums  that  they  fhall  have, 
as  fliarers  and  partners  in  them  and  their  produce  ;  dedufting  the  cofls  and 
charges,  at  lofs  and  gain,  as  a  company's  account. — Whenever  fuch  a  wreck 
of  fliip,  anH  goods  happens,  and  infiirancc  fhall  have  been  made  upon  part 
of  her,  or  them,  the  lender  of  money  at  bottomiy,  or  rifque  of  fea,  fliall  be 
preferred  to  the  affurers  for  his  payment,  out  of  the  produft  of  what  fliall  be 
faved,  to  the  amount  of  the  principal  fum  that  he  fliall  have  lent,  without 
including  the  premiums,  by  reafon  of  his  fpecial  fubjeftion  and  hypothecation. 
— All  the  writings  and  contrafts  of  money,  or  goods  given  at  bottomry,  fliall 
be  held  as  extinguiflied,  by  the  entire  lofs  of  the  one,  or  the  other  ;  he  that 
Ihall  have  borrowed  it  remaining  free  from  the  contrafted  obligation,  and 
without  the  lender's  having  any  recourfe  againft  him,  or  his  eftefts. — 
Ordin.  of  Bilboa. 

2.6.  As  lenders  on  bottomry  receive  a  premium  including  not  only  more 
than  common  intereft,  but  alfo  what  would  pay  for  their  making  infurance, 
they  fliould  be  looked  upon  as  infurers,  and  confequently  bear  thofe  averages 
the  infurers  do. — 2  Mag.  168. A  bottomry  contraft,  and  a  policy  of  in- 
furance, as  depending  on  the  fame  principles,  are  fubje6l  to  the  fame  rifques ; — 

2ValinsComm.  13. — confequently  to  all  the  fame  averages. — Ibid.  19. And 

the  infurer,  being  in  the  place  of  the  lender  on  bottomry,  is  equally  entitled 

to  fliare  in  cafe  olfalvage. — Ibid.  22. In  Italy,  it  is  permitted  to  thofe  who 

advance  money  on  bottomry  to  infure  ihtproft  as  well  as  the  principal. — • 

Cafa  Regis,  difc.  1.  n.  123.  and  difc.  14.  n,  12. — Rocciis,  241. As  it  would 

be  difficult  to  find  borrowers  on  bottomry  who  would  fubmit  to  pay  before 
the  return  of  the  fliip,  ufurious  lenders  have  contrived  the  means  of  indemni- 
fying themfelves  in  cafe  the  fliip  fliould  not  return  in  the  nfual  time,  by 
fl^ipulating  that  if  fhe  fhould  not  be  arrived  in  a  certain  time,  the  intereft 
fliall  be  paid  at  the  rate  of  an  half  per  cent,  per  month,  as  well  upon  the 
maritime  intereft,  as  the  capital :  but'  fucli  a  coiltraft  is  manifeftly  ifurious, 
even  when  there  fliould  be  reciprocally  agreed  in  favour  of  the  borrower, 
that  the  fliip  arriving  before  the  ufual  time,  the  like  half  per  cent,  fliall  be 
dedufted  ;  becaufe  nothing  is  more  comnion  than  a  delay  of  her  return  beyond 
that  time. — 2  Valins  Comm.  5. 

Q  27.    Form 


^8  BOTTOMRY. 

2*'.     Form   of  a  Bottomry-Bond,  on  a  ShiJ?,    in  ufe  at  Cadiz, 

BE    it   publickly  known,  tliat  we,  Don  Auguftin  Francifco  de  Utrera,  and  Arroyo,  &c. 
owners,  captain,  and  mafter  of  the  (hip  called  Qneen  of  the  Angels  and  St.  Charles, 
one  of  the   Flota,   getting  ready  in  this  port,    for  the  kingdom  of  New  Spain,  under  the 
command  of  the  commodore  Don  Antonio  Serrano;  both  inhabitants  of  this  city  of  Cadiz, 
ioindy  and  fcparaicly,  and  for  the  whole  j?;,/o//^mw  obliged;  renouncing,  as  we  exprefsly 
renounce     the  laws  de  diwbus  rets  debendi,  et  authentica;  dejtdcjujforibus,  remedio  et  beneficio 
divifionis  et  excujfionh,  with  all  other  laws,  privileges,    and  rights  of  the  joint  community,  as 
is  in  them  contained;  under  which  renunciations,  we  acknowledge  to  owe,  and  each  of  us 
in  folidum,    to   Donna    Therefa   Quinarte  and  Sanabria,    forty  and  feven  thoufand  diree 
hundred  and  ninety-two  dollars,  and  fix-cighths  of  another,  old  money,   of  thofe   that  are 
now  current  under  this  denomination  in  thefe  kingdoms,  the  which  flie  has  lent  to  fcrve  us; 
and  we  confefs  to  have  received  that  fum  from  her,  in  ready  money,   before  figning  this 
obli'^ation,  including  therein  the  premiums  of  the  rifques  that  fhall  go  declared,   and  have 
been  regulated  according  to  the  time  prefent ;    from  which  proof  we  releafe  her,    and 
acknowledge  ourfelves  to  be  fatisf.ed,  and  to  have  received  the  faid  fum,  principal,  and 
premiums,    to  our  fatisfafction  ;    and  as  to  it's  receipt  not  being  prefent,   we  renounce  the 
exception  of  the  non  mmerala  pecunia,  proof  of  payment,  fraud,  and  term,  and  what  elfe  is 
to  the  purpofe,  as  it  is  in  them  contained,    for  which  we  acknowledge  a  fufficient  receipt ; 
and  the  faid  forty  and  feven  thoufand  three  hundred  and  ninety-two  dollars  of  plate,   and 
fix-eighths  of  this  loan,  are  to  go,  and  come  this  voyage  at  the  rifque,  and  for  account  of 
the  creditor,  with  her  approbation  and  confent,  from  the  bay  of  this  city,  to  the  port  of  the 
new  Vera  Cruz,  in  the  faid  kingdom  of  New  Spain,  and  from  thence  back ;  on  going,  in 
tlie  faid  fliip   called   Queen  of  the   Angels  and   St.  Charles,  and  upon  her  hull,    keel,    and 
earnings,  which  are  of  greater  value   than  this  debt ;    in   the  fitting  out  and  equipping  of 
which  we  declare  to  have  converted  the  import  of  this  writing,   for  which  purpofe  the 
creditor  lent  it  us.     And  on  returning,  flie  is  to  run  the  faid  rifque  in  the  afore-mentioned 
fhip,  and  in  the  two  that  fliall  come  as  Capitana  and  Almiranta  of  this  Flota,  upon  as  many 
more  dollars  of  plate  ;    in  double  plate,    which  we  oblige  ourfelves  to  embark   in  equal 
thirds,  in  the  faid  three  fhips  under  regifler,  with  bills  of  lading  in  favour  of  the  creditor. 
The  which  rifques  are,  and  fo  to  be  underftood,  of  the  fea,  wind,  land,  fire,  friends,  enemies, 
and  other  unfortunate  marine  accidents,  that  may  happen  to  the  faid  fliip,  Oueen  of  the 
Angels  and  St.  Charles,  ongoing,  and  returning;    and  to  the  afore-mcntioned  fliips   the 
Capitana  and  Almiranta,  in  their  homeward-bound  voyage  for  Spain,  during  their  naviga- 
tion, provided  the  faid  fliip,  Our   Lady  of  the  Angels,   going,  or  thofe  upon  which  this 
rilqiie  fliall  be  cxprclfed  to  come,  in  returning,  fhall  be  loll ;   in  which  cafe,  the  lofs  being 
total,  we  are  to  remain  free  from  the  payment  of  the  fum  of  this  debt;    and  this  inftrument 
Ujull  and  void,  as  if  it  had  not  been  made.     But  if,  on  going  out,  the  faid  fliip,  Our  Lady 
of  the  Angels  and  St.  Charles,  fliall  run  afliorc,   or  clfewhcre  be  wrecked,    and  her  voyage 
be  overfct,  faving  her  guns,    hull,  or  other  fl.ores  of  the  fliip,   and  if  in  the  return,  thole 
dollars  fhall  be  favcd  on  which  the  rifque  is  declared  by  her,  or  the  faid  two  fliips  the 
Capitana  and  the  Almiranta,  the  creditor  is  to  receive  from  what  nfaved,  the  fum  of  this 
obligation,  and,  we  the  remaining  value,  bpth  parties  remaining  partakers  and  partners  ;  to 
the  end  that,  deducing  the  cofts  and  charges  which  it's  prefervation  fliall  have  occafioned, 
flie  balance  be  divided  and  diftributed,  as  a  parinojliip  account;  in  order  to  wliich,  an 
attcftcd  account,  given  by  the  perfon  who  fliall  have  had  the  management  of  the  affair,  fhall 
be  fufficient,  without  any  other  proof,  although  by  law  required,    of  which   we  releafe  it. 
And  the  rljciut  of  the  voyage  outward  is  to  be^in  from  the  day,   honr,  and  moment,  that  tlic 
faid  fliip,  named  the  Queen  of  the  Angels  and  St.  ChaileS;  fliall  get  under  fail,  in  the  bay 
.1     .--^  of 


BOTTOMRY, 


59 


of.  this  city  on  her  voyage,  and  all  the  continuance  of  her  navigation,  making  any  (tops,  and 
going  into  any  ports,  either  by  conftraint,  or  voluntarily,  until  flie  really  and  truly  fail  and 
enter  into  the  faid  port  of  Vera  Cruz,  and  therein  caft  her  fird  anchor :  and,  hefides  that, 
twenty-four  natural  hours  be  elapfed ;  the  which  expired,  the  creditor's  rifques  out  ceafe  ;  and 
ihofe  that  fhall  happen  thenceforward,  are  for  our  account.  And  thofe  on  the  return,  are 
to  commence  from  the  inftant  that  the  faid  fhip,  Our  Lady  of  the  Angels  and  St.  Charles, 
and  the  aforefaid  two  fliips,  the  Capitana  and  Almiranta,  fhall  get  under  fail  in  the  faid  port 
of  the  new  Vera  Cruz,  to  return  to  thefe  kingdoms,  and  all  their  voyage,  goin"  into,  and 
flopping  at  any  ports,  necelT'arily  or  voluntarily,  until  they  enter,  and  anchor  in  the  bay  of 
this  city,  the  river  Benawza,  of  that  of  St.  Lucar  de  Barrameda,  or  any  other  port  of  Europe, 
where  the  voyage  fhall  be  deemed  finiflied,  and  their  fird  anchors  there  caft,  and  twenty- 
four  fuch  hours  as  the  antecedent  be  befides  elapfed ;  the  which  ended,  the  rifques  for  the 
creditor's  account  remain  entirely  finifhed,  and  thofe  that  fhall  happen  thenceforward,  are 
to  be  for  ours.  And  from  this  time;  for  that,  when  all  the  rifques  fhall  have  expired,  we 
conflitute  ourfelves  evident  aiid  plain  debtors  of  the  aforefaid  forty  and  feven  thoufand 
three  hundred  and  ninety-two  dollars  of  plate,  and  fix-eighths  of  another,  truly  to  give,  and 
pay  them  to  the  faid  Donna  Therefa  Quinarte  and  Sanabria,  and  to  whomfoever  fhall  have 
her  power  and  letter  of  attorney  in  this  city  of  Cadiz,  and  it's  liberties,  and  jurifdiftion,  and 
in  any  other  part  of  thefe  kingdoms,  thofe  of  the  Indies,  and  others,  where  it  (liall  be 
demanded  of  us,  we  and  our  effefts,  and  either  of  us  that  fhall  be  met  with,  within  the  fird 
fifteen  foUowijig  days  after  the  faid  rifques  fhall  be  over,  in  as  many  dollars  and  hdM  dollars 
of  plate,  in  double  plate,  of  the  Mexican  imprefTion,  that  have  the  fame  value,  flandard, 
weight,  and  goodnefs,  which  the  Mexican  coin  at  prcfent  have,  and  pafs  at,  and  not  in  any 
other  fpecie,  or  form  of  payment ;  without  any  abatement  or  difcount,  and  without  attendino- 
any  other  time  or  term;  free  of  iiidulto,  carriage,  or  any  other  royal  or  commercial  contri- 
bution, although  they  be  unexpefled  ones,  as  all  thefe  have  been  forefeen,  confidered,  and 
provided,  for  the  celebration  of  this  contraft,  and  for  all  that  is  contained  in  this  writing; 
and  for  the  charges  of  the  recovery,  we  confent  to  an  execution,  in  virtue  of  it,  and  the 
oath  of  the  creditor,  or  her  attorney  ;  in  the  which  we  quit  and  defer  the  proof  and  exami- 
nation of  all  the  aforefaid,  the  liquidating  of  the  faid  charges,  and  what  elfe  is  requifite,  and 
ought  to  be  cleared  up,  that  this  writing  may  be  executable  j  to  whofe  firmnefs,  payment, 
and  compHance,  we  oblige  our  perfons,  and  effe&  that  we  at  prefent  poffcfs,  or  may 
hereafter  acquire,  and  without  the  obligation's  derogating  from  the  fpeciality,  nor  on  the 
contrary ;  but  that  both  laws  be  ufed  againft  us,  we  oblige  ourfelves,  and  hypothecatt  for  the 
fecurity  and  payment  of  the  fum  of  this  writing,  the  faid  fliip  named  the  Queen  of  the 
Angels  and  St.  Charles,  her  hull,  hold,  llores,  and  furniture,  and  every  thing  elfe  belonging 
to  her ;  and  we  oblige  ourfelves  not  to  difpofe  thereof  in  any  manner,  until  the  faid  fum 
be  entirely  paid  :  and  whatever  fliall  be  done  to  the  contrary,  let  it  be  null,  as  a  thing 
done  againft  an  exprefs  prohibition,  and  hypothecation :  and  we  give  full  power  to  his 
majefty's  judges  and  juftices,  of  any  parts  whatfoever  of  thefe  kingdoms,  thofe  of  the  Indies, 
and  others  where  this  writing  fliall  be  prefented,  and  its  compliance  demanded ;  to  which 
royal  law  and  jurifdi6tion,  we  oblige  and  lubmit  ourfelves,  renouncing  that  we  have,  and 
another  which  we  fliall  acquire,  and  the  law  fi  convencrit  de juriJdiBione  omnium  judicum,  and 
the  lalt  ordinances  of  fubmiffions,  to  the  end  that  to  what  the  faid  is  they  may  compel  and 
force  us  with  the  rigour  of  a  definitive  fentence.  We  renounce  the  laws,  rights,  and 
privileges  irt  our  favour,  and  the  general  in  form  ;  and  we  confent  that  what  authenticated 
copies  die  creditor  fliall  afk  of  this  Writing,  fliall  be  granted  her,  without  the  judge's  order, 
or  our  citation ;  and  we  fo  oblige  ourfelves  before  the  Notary  Publick,  and  witneffes  in  the 
city  of  Cadiz,  on  the  day  of  one  thoufand  feven  hundred  and 

And  the  coniraQing  parties,  whom  I  the  faid  notary  certify  to  know,  figned  it  in  my  regifter. 
WitnelTcSj  &c.  28.  For.m 


6o  BOTTOMRY. 

28.     Form  of  a  Re/pondentia  Bond,  now  in  ufe  in  London. 

KN  O  W  all  men  by  thefe  prefents,  tliat 
held  and  firmlv  bound  to 

in  the  fum,  or  penalty  of 
of  good  and  lawful  money  of 
Great-Britain,  to  be  paid  to  the  faid 

or  to  certain  attorney,  executors,   adminiflrators,  or  afligns ;  to  which  payment, 

well  and  truly  to  be  made 

.heirs,   executors,    and  adminiflrators,    firmly  by  thefe  prefents,   fealed  with  feal. 

Dated  this  day  of  in  the  year  of  the 

reign  of  our  fovereign  Lord  by  the  grace  of  God,  of 

Great-Britain,    France,  and    Ireland,  king,  defender  of  the  faith,  and  fo  forth,  and  in  the 
year  of  our  Lord,  one  thoufand  feven  hundred  and 

The  Condition  of  the  above-written  obligation  is  fuch,  that  whereas  the  above-named 

hath,  on  the  day  of  the  date  above  written,   lent  unto  the 
above  bound  the  fum  of  upon  the 

mcrchandifcs  and  effeEls,  to  that  value  laded,  or  to  be  laden  on  board  the  good  fliip  or 
veffel,  called  the  of  the  burthen  of  tons, 

or  thereabouts,  now  in  the  river  Thames,  whereof  is  commander. 

If  the  faid  fliip  or  velfel  do,  and  fliall,  with  all  convenient  fpeed,  proceed  and  fail  from, 
and  out  of  the  faid  river  of  Thames,  on  a  voyage  to  any  ports,  or  places  in  the  Eaft-Indies, 
China,  Perfia,  or  elfewhere  beyond  the  Cape  of  Good  Hope,  and  from  thence,  do,  and 
fhall  fail,  and  return  into  the  faid  river  of  Thames,  at,  or  before  the  end  and  expiration  of 
thirty-fix  calendar  months,  to  be  accounted  from  the  day  of  the  date  above  written,  and 
that  without  deviation  (the  dangers  and  cafualties  of  the  feas  excepted).  And  if  the  above- 
bound  •  heirs,  executors,  or 
adminiftrators,  do,  and  fliall,  within  days  next  after  the  faid  fhip,  or  veffel, 
fhall  be  arrived  in  tlie  faid' river  of  Thames,,  from  the  faid  voyage,  or  at  the  end  and  expira- 
tion of  the  faid  thirty-fix  calendar  months,  to  be  accounted  as  aforefaid  (which  of  the  faid 
times  fhall  firft  and  next  happen)  well,  and  truly  pay,  or  caufeto  be  paid,  unto  the  above- 
named  executors,  adminiftrators, 
or  afligns..  the  fum  of.  _.. J  ..^.  of  lawful  money 
of , Great-Britain,  togetherwith  oflikemonev, 
by  the  calendar  month,  and  fo  proporlionably  for  a  greater  or  leffer  time  than  a  calendar 
month,  fdr:iall  fuch.  .titne,  and  fo  many  calendar  months,  as  fhall  be  elapfed,'  and  run  out  of 
the  faid"  thirty -fix  calendai-  months,  over  and  above  twenty  calendar  months,  to  be  accounted 
from  the  day  of  the  date  above  written ;.:  or  if,  in  the  faid  voyage,  and  within  the  faid 
thirty-fix  calendar  months,  to  be  accounted  as'  aforefaidj  ah  utter  lofs  of  the  faid  fhip,  or 
yeffcl,  by  fire,  enemies,  men  of  war,  or  any  .other  cafualties,  fliall  unavoidably  happen: 
ahd  the  above-bound                                 :■.    .■  o;::^ 

heirs,  executors,  or  adminiftrators,  do,  and  fhall,  within  fix  months  next  after  fuch  lofs, 
pay;  and  faii,sfy  to  the  faid  executors, 

adminifl-rators,  or  afligns,  a  juft  and  proportionable  average  on  all  the  goods  and  effetU 
whic|v the  faid       :.:.:-,:.::■..:...  carried  from  England 

on  ,b©ar!(i.t])e.  faid  flijp.lor  veffel,  and  on.  ajl  other  the  goods  and  effcfls  of  the  faid 
,:-;i    .'     h   .  •,-:    ;:.\ -:::v7   .-.-.  ■      t'i  which  fhall  acquire  during  the  faid 

voyage,  and  which  fliall  not.be  unavoidably  loft ::  then. the  above-written  obligation  to  be 
void,  and  of  no  effeft;  or  elfe  to  ftand  in  full  force  and  virtue. 

Seakdavd  delivered  {being  firp.du[y_flavipt)mtlupnfence  of 

29.     Szi 


t 


BROKER.  6i 

29.  See  Average,  Bankrupt,  Barratry,  Dollar,  Eajl-India,  France,  General 
Average,  Hamburgh,  Hypothecation,  Inter ejl  or  no  Inter eji,  Majlcr,  Owner, 
Partner/hip,  Policy,  Reinfurance,  Refpondentia,  Rifque,  Ufage, 


BOUNTY. 

1 .  Tj^  O  R  the  encouragement  of  our  commerce  and  navigation,  the  legiflature 
-*-  has  thought  it  proper  to  grant  not  only  drawbacks  of  duties,  and  other 
allowances,  or  abatements,  on  the  exportation,  and  importation,  of  fundry 
commodities ;  but  alfo  bounties  or  premiums  on  divers  others,  and  on  fhips 
employed  in  our  fifheries. — I  have  therefore  already  mentioned  under  titles, 
abatement,  and  average,  that  the  aforefaid  circumftances  are  often  requifite 
to  be  adverted  to  in  calculating  the  true  value  of  the  intereft,  and  ftating  an 
average  or  lofs,  with  accuracy. 

2.  In  regard  to  bounties  on  fhips,  payable  on  the  completion  of  the  voyage; 
it  has  been  frequently  made  a  queftion,  whether,  in  cafes  o{  general  average, 
contribution  ought  to  be  made  for  the  value  of  fuch  bounties  ?  as  being  an 
afcertainable  intereft  in  rifque,  infurable  (by  aft  of  parliament)  and  depending 

on  the  event  of  tlie  fhip's  fafe  return. It  is   certain  that  the   bounty  is  a 

confiderablc  objeft  in  view,  in  the  great  expence  of  fitting  out  of  fhips  for  the 
fiflieries,  and  may  be  looked  upon  as  the  earnings  of  thofe  (hips  in  cafe  of 
arrival,  and  in  the  fame  light  sls  freight ;  and  therefore  it  feems  reafonable 
that  the  one  fhould  contribute  to  a  general  average  as  well  as  the  other  ; 
for,  the  principle  of  contribution  is,  and  juftice  requires,  that  equality  fliould 
take  place  amongft  all  thofe  who  are  interefted,  and  who  have  been  in 
danger  of  lofing  all ;  and  where  fome  have  been  benefited,  or  faved  what 
was  in  rifque,  only  by  means  of  the  damage,  charge,  lofs,  or  facrifice  of  the 
intereft  of  others,  for  the  common  good. 

3.  See  Abatement,  Average,  Contribution,  Fifieries,  Freight,  General 
Average,  Greenland,  Herring- Fijliery,  Ireland,  Nenfoundland,  Whale- Fijliery. 

BROKER. 


1.  TN  the  Prelim.  Difcourfe,  it  was  thought  to  be  neceflary  to  make  fome 
-*-  earneft  ftriftures  on  the  irregularity,  unjkilfulnefs ,  and  culpability  of 
many  infurance  brokers;  at  the  fame  time  that  ample  juftice  was  done  to 
the  integrity,  and  abilities  of  feveral  other  gentlemen  a6ling  in  the  like 
capacity. — There  are  fundry  matters  with  regard  to  infurance  brokers  in 
g(?neral,  and  their  ufual  manner  of  tranfafting  this  bufinefs,  in  London, 
which  unqueftionably  merit  the  moft  ferious  attention  and  correftion,  for 
the  common  good. — The  total  want,  in  England,  of  thofe  feveral  prudent 
laws  and  regulations  concerning  their  due  qualification  and  condud,  which  in 

R  other 


62  BROKE     R. 

other  countries  it  liiis  been  thought  indifpenfably  requifite  to  eftablifh  by 
authority  (the  more  material  whereof  I  have  deemed  it  ufeful  to  notice  under 
this  head)  and  to  which  they  are  obliged  to  adhere,  even  under  oath  and 
fevere  penalties,  as  well  as  difgraceful  dijmjfion  from  office,  for  non-obfervance 
or  malverfatlon,  is  undeniably  productive  of  continual  diforders,  reiterated 
deceptions,  and  impofitions ;  which  are  the  caufes  of  thofe  numerous  alterca- 
tions and  litigations  between  infurers  and  hifureds,  that  arc  fo  prevalent  in 
the  prefent  times. 

2.  In  time  of  war,  both  brokers  and  underwriters  very  much  increafe  ; 
and  feveral  of  them,  having  been  before  employed  in  matters  entirely  uncon- 
nefted  with  thofe  of  iniurance,  perhaps  even  with  common  commercial  affairs, 
are  therefore  but  little  acquainted  with  the  laxos,  principles,  and  u/ages  relative 
thereto  ;  and  mud  confequently  be  very  inadequately  qualified  for  regulating 
and  deciding  with  a  tolerable  degree  of  accuracy  or  propriety,  the  various 
and  fometimes  intricate  circumftances,  which  neceffarily  occur  with  regard 
to  lofles,  averages,  falvages,  and  all  thofe  other  important  matters  which 
are  treated  of  under  their  refpeftive  heads  throughout  this  work. 

3.  The  loofe  and  haRy  manner  in  which  fome  brokers  often  receive  and 
execute  their  orders,  whether  verbal  or  in  writing  (though  they  ought  always 
to  be  in  the  latter,  and  preferved) ; — their  inattention  to  obtain  proper 
informations,  as  to  tlie  circumftances  relative  to  the  voyage  and  rifque  ;  and 
confequently  their  inability  to  communicate  them  as  they  ought ; — their  vague, 
inaccurate,  and  fometimes  entrapping  manner  of  exprelFiort,  in  filling  up  the 
xoritten  part,  or  claufes  of  policies :  and  the  innovations  they  are  continually 
making,  in  this  refpefcl,  by  departing  from  the  form  of  words  formerly  efta- 
blilhcd  on  due  deliberation  and  experience,  in  divers  inftances ;  their  unfair 
or  inconfiderate  concealment ^  mifreprefentation,  or  variation  of  circumftances, 
which  tliey  have  aftually  been  informed  of,  in  order  to  get  infui-ances  effefted ; 
tlieir  partiality,  or  negligence,  in  not  obtaining  and  producing  proper  papers 
and  documents,  for  the  purpofe  of  fair  adjuftments; — and  their  general  bias, 
in  all  thefe  refpecls,  to  promote  the  views  of  their  employers,  and  therein 
tiielr  own  fuppofed  intereft,  without  a  due  regard  to  the  exercife  of  that 
precifon,  probity,  and  equal  juftice,  which  is  incumbent  on  them  towards  the 
reipeftive  parties,  between  whom  they  tranfa6l ; — all  thefe  are  evils  which 
indubitably  very  much  prevail,  and  merit  particular  reprobation  and  redrefs ; 
but  which,  I  ftatter  myfelf,  thofe  who  aft  as  brokers,  and  who  may  be  difpofed, 
as  many  certainly  are  (notwlthftanding  the  defeft  of  legal  coercion)  as  well  for 
their  own  honour  and  reputation,  as  the  general  benefit,  to  obviate  and  correft, 
will  be  amply  enabled  fo  to  do,  by  an  attentive  and  frequent  perufal,  as  Occafwns 
mny  require,  of  the  feveral  matters  contained  in  this  work  : — the  bufinefs  of 
>vliiich.is'an  adherence  to  truth,  and  the  public  good,  without  re fpeft  of  perfons. 

■■■^  A. 

:  ,4.  Bf-Sibes  what  I  have  already  remarked,   there  are  other  circumftances 

in  regard  to  brokei^,  which  feem  not  a  little   to   need  obfervation ;   and  in 

i  JO  which 


BROKER.  6:^ 

■which  (akhough  I  am  far  from  being  inchned  to  favour  an  abridgement  of 
any  of  the  reafonable  emoluments  and  fruits  of  induftry,  to  which  every  man 
is  entitled)  fome  akeration  might,  and  ought  to  be  made,  for  general 
conveniency  and  fecurity  ;  and  without  affefting  the  true  interefls  6f  brokers 
themfelves  ;    but  which  on  the  contrary  would,  in  effeft,  prove  the  means  of 

promoting  their  real  welfare  and  profperity. Andi firji,  with  refpeft  to  their 

accounts : — ^the  preciphate  manner  in  which  policies  are  often  done  at  Lloyd's 
Coffee-Houfe,  may  well  fubjeft  underwriters  to  miftakes,  in  making  the 
original  entries  of  their  fubfcriptions,  either  as  to  the  premiums,  or  otherwife ; 
in  which  cafes  they  have  no  other  check,  or  means  of  correfting  errors  and 
omiffions,  but  the  honeRy  of  the  feveral  brokers  with  whom  they  have 
accounts  ; — on  the  contrary,  the  brokers  have  always  an  infallible  method  of 
correfting  any  errors  in  their  entries,  which  are  made  at  home  deliberately, 
by  themfelves,  or  clerks,  from  the  policies  themfelves,  debiting  the  affureds 
and  crediting  the  infurers  ;  fo  that  by  a  previous  examination  of  fuch  entries, 
before  ftriking  the  annual  balance  of  each  underwriter's  account,  brokers  are, 
or  may  be,  always  certain  of  it's  truth  ;  by  the  agreement  of  thofe  debits  with 
the  credits  ;  but  it  cannot  be  fo  with  underwriters ; — therefore  the  method 
ufually  praftifed,  of  the  latter  acquainting  the  former  what  fum  fuch  annual 
balance  may  be,  ought  to  be  reverfed  ;  and  as  is  cuflomary  in  the  greater 
part  of  all  other  tranfaclions,  where  brokers  are  employed,  they  ought  to 
deliver  a  note,  or  an  account  of  the  fum,  to  each  party  ;  and  where  the  items 
of  an  account  between  a  broker  and  an  infurer  become  numerous,  it  would 
not  be  improper  if  this  were  done  every  three  months,  by  way  of  fliort 
monthly  abftra6l,  debtor  and  creditor. — This,  or  fome  fimilar  method,  is  the 
more  requifite,  becaufe  without  it,  in  cafes  of  infolvency  of  brokers,  or  other 
neceffity  of  proving  the  fum  due  from  them,  it  is  difficult  to  produce  legal 
evidence  thereof; — other  reafons  might  alfo  be  mentioned. 

5.  Secondly,  as  toxhtir  payments : — it  has  been  found  by  unqueflion- 
able  experience  in  every  branch  of  trade  and  commerce  that  whatever  has  a 
tendency  to  render  accounts  between  parties  extenfive  or  complex,  and  to 
protraft  indefinitely  the  fettlement  of  them,  is  infallibly  produftive  of 
increafmg  irregularity,  want  of  confidence,  and  danger ;  and  thefe  are  the 
certain  confequences  of  the  methods  and  pretences  made  ufe  of  by  feveral 
brokers  to  evade,  or  poftpone  to  an  unreafonable  time,  the  payment  of  their 
annual  balances  ;  and  often  to  deduct  therefrom  lofTes,  averages,  returns,  &c. 
which  happen  even  feveral  months  after  the  preceding  year's  balance  has  been 
agreed,  and  during  another  year's  current  account : — to  which  praftices  they 
are  indeed  encouraged,  by  the  too  eafy  acquiefcence  of  fundry  infurers, 
whofe  chief  confideration  is  to  underwrite,  at  all  events,  as  many  policies  as 
they  can  ;  little  perceiving  the  final  effefts  of  their  injudicious  conduft  :  one 
of  which,  very  natural,  and  therefore  very  common  is,  that  they  at  laft  find 
knot  only  difficult,  but  fometimes  impoffible,  to  obtain  any  payment  at  all. 

1  fay  nothing  of  the  large  dedu6iion,  or  allowance  of  lol.  percent,  now 

ufually   made  to  brokers  who  do   pay   their  balances,  or   a  part   of  them 

(which 


64  BROKER. 

(which  dcdudlon  was  but  5I.  percent,  before  the  clofe  of  the  late  war  with 
France  and  Spain)  ahhough  fix,  nine,  and  even  twelve  months,  or  howfoever 
Ion 'J- after  they  are  due  ;  and  then  perhaps,  by  their  notes  of  hand  at  two 
months  after  date  ;  before  the  expiration  of  which,  and  notwiihftanding  the 
aforefaid  allowance  of  lol.  per  cent.  lofTes  or  averages  frequently  happen, 
which  mufl  often  be  paid  in  cafh  by  the  underwriter,  to  a  larger  amount  than 
fuch  notes  of  hand. — However,  It  is  certain  that  thefe  irregular  and  irrational 
methods  of  proceeding  will  always  prove  eventually  hurtful  to  underwriters; 
and  fuch  an  indefinite  and  unlimited  credit  to  brokers  (whilfl  many  of  them 
are  availing  themfelves  of  the  premiums  which  they  receive  from  their 
employers)  mufl  ever  be  too  great  a  temptation,  to  a  more  imprudent  conduct 
than   would  otherwife  be  the  cafe  :  and  often   proves  ultimately  ruinous  to 

themfelves  as  well  as  injurious  to   their  underwriters. For  mutual  conve- 

niency  and  fafcty,  therefore,  it  fliould  be  eftablifhed,  as  a  rule,  that  each 
year's  balance  of  account  to  the  31ft  of  December,  betwee.n  merchants  and 
brokers,  and  between  the  latter  and  underwriters,  fhould  be  liquidated  by  a 
certain  day  in  the  fubfequent  year  (fuppofe  the  ift.  of  May)  either  in  ca(h,  or 
by  bills  at  fliort  date,  or  by  the  merchants  accepting  the  brokers' draughts, 
payable  two  months  after  fuch  certain  day  : — and  it  fliould  be  undcrftood, 
or  exprefled  in  the  underwriter's  receipt  to  the  broker,  that  the  allowance  of 
lol.  per  cent,  fliall  be  made  or  palled  to  his  credit  when,  or  in  cafe  the  bills 
be  paid. — No  reafonable  objeftionof  any  fort  can  lie  againfl  this  method  from 
either  party  : — for,  the  great  impropriety,  in  every  point  of  view,  of  the 
prefent  modes  and  times  of  fettling  infurance  accounts  are  very  obvious ; 
and  that  they  by  no  means  tend  to  promote  that  equality  and  nmtual 
convenience,  which  fliould  be  the  objeft  of  all  commercial  affairs  : — and  the 
obligation  on  the  part  of  infurers  to  fatisfy  or  pay  every  lofs  and  average 
within  one  vionth^htx  the  adjuflment,  when  there  are  not  equivalent  premi- 
ums due  from  the  broker,  is  a  very  unreafonable  circumftance,  whilfl  they  mufl 
notwithftanding  continue  uncertain  at  what  time,  if  ever,  they  fliall  receive 
the  premiums  due  to  them  from  fundry  other  brokers. — This  inequality  as 
well  as  many  others  in  this  bufinefs,  grows  every  day  more  and  more  into 
ahujc,  by  brokers  availing  themfelves  of  every  polhble  advantage  and  pro- 
traction of  payment,  to  the  prejudice  of  infurers. — Confidered  with  relpc61 
to  the  parties  in  thefe  tranfaftions,  it  is  totally  unequitable  ;  and  in  its 
confequences,  with  refpeft  to  the  public,  very  impolitical. 

G.  Thirdly,  it  is  the  indifpenfable  duty  of  brokers,  to  exercife  at  leafl  a 
c\\'\\  ^n&  CTind^xdpcy fonal  behaviour,  on  all  occafions,  although  they  may  be 
deficient  in  a  gentleman-like  addrefs  (of  which  however  there  are  never 
wanting  amongfl  them  feveral  examples)  ;  and  whenfoever  a  contrariety  of 
opinions  may,  as  it  is  impoffible  but  it  mufl  fometimes,  occur,  that  they  give 
a  fair  and  impartial  attention  to  them  ;  endeavour  with  becoming  temper 
and  decency  to  obviate  and  reconcile  them  ;  and  to  conciliate  a  good  under- 
ftanding  between  infurers  and  infureds,  inflead  of  promoting  differences  and 
difputes    between  abfent   parties,    by    mifreprefentutions   of,    or   ill-natured 

rcfleftions 


BROKER.  65 

reflexions  upon,  eitlier  of  them,  which  are  ufually  the  e{fe£to!i  igiioravce  and 
ill-breeding. — Inftances  neverthelefs  frequently  occur  where  after  a  broker, 
from  motives  of  difpatch,  or  to  ferve  his  principal,  or  otherwife,  has,  by 
importunity,  or  an  ill-judged  confidence  placed  in  him,  fucceeded  in  prevail- 
ing upon  fome  one  underwriter  to  adjufl;  inconfiderately  and  v/ithout  any 
examination,  a  lofs,  average.  Sec.  very  unfairly  or  very  erroneoufly  dated 
(than  which  nothing  is  become  more  common)  and  where  fuch  broker  has 
alfo  induced  fome  other  underwriters  to  follow  the  like  indolent  and  indifcreet 
example, — the  fame  broker,  or  others,  who  may  have  effected  other  parts  of 
the  fame  infurance,  on  application  being  made  by  them  with  fuchadjuftments, 
to  others  of  the  underwriters  who  chufe,  as  they  have  an  undoubted  right,  to 
exercife  their  better  judgment  and  experience  in  matters  where  their  fortune 
is  effentially  at  flake,  find  unaiifwerable  objeElions  made  to  fuch  adjuflments  ; 
— notwithftanding  .which,  the  broker  (in  conjunftion  with  the  affured)  perjifls 
even  againjl  conviClion,  in  the  unreafonable  and  unjufl;  demand  ;  and  proceeds 
to  abufive  or  cenforious  altercation,  without  a  fingle  rational  argument  to 
fupport  it,  except  the  very  ridiculous  and  flupid,  though  very  ufual 
obfervation,  viz.  "  Why  !  fuch,  and  fuch,  or  fo  many  of  the  underwriters  (as 
"  above  intimated)  have  fettled  it :" — ^^anfwer,  yes ;  without  any  confideration 
of,  or  even  the  leafl  attention  to,  what  they  were  about. — In  all  fuch  cafes, 
it  is  unqueftionably  the  incumbent  duty  of  a  fair  and  honejl.  broker,  immedi- 
ately to  defifi:  from  fuch  unreafonable  requifitions ;  to  fet  about  making,  or 
receiving  from  the  judicious  and  candid  infurer,  a  more  f^wz/^aZ'/^  adjuflment; 
to  reconcile  the  infured  to  the  correftion  of  an  erroneous,  or  unfair  claim  (how 
far  foever  he  may  have  fucceeded  in  it) ;  and  to  do  juflice  to  all  parties. 

7.  Fourthly,  as  to  the  frequent  pra6lices  amongfl;  brokers,  of  being 
^A^w/^/i;ci  underwriters  ; — of  giving  policies  to  o^A^r  brokers,  to  be  in  part  or 
in  whole  effefted,  without  the  cognizance  of  the  affured,  and  often  without 
the  needful  informations  concerning  the  rifque  ; — I  fhall  not  prefume  to  decide 
on  the  propriety  and  wifdom  of  the  ftrong  prohibitions  which  are  laid  on 
infurance  brokers,  in  thefe  and  fimilar  refpefts,  in  other  countries  ;  nor  how 
far  the  principle  of  conflitutional  freedom,  which  prevails  in  this  nation, 
ought  to  operate  in  commercial  as  well  as  political  affairs  (although  we  have 
ftatutes  inflitling  fevere  penalties  on  brokers  afting  2l%  principals  in  fome  other 
branches  of  bufinefs) : — it  is,  however,  no  uncommon  thing,  in  England, 
(where  only  it  is  permitted  to  brokers  to  infure)  to  fee  the  names  of  more 
infurance  brokers,  than  of  profefTed  infurers,  fubfcribed  to  one  and  the  fame 

policy. What  partialities,  collufions,  hazards,  or   other  inconveniencies, 

do  or  may  arife  from  thefe  interefted  connexions  and  confuled  proceedings 
amongfl  brokers,  I  leave  to  the  confideration  of  merchants  and  infurers  in 
general. 

8.  The  broker  is  employed  by  the  infured  ;  he  deals  with  the  underwriters 
as  attorney  for  his  principal,  from  whom  he  receives  his  inflrutlions :  if  he 
deviates  from  his  inftruftions  he  is  anfwerable  to  his  employer,  the  infured. 

S  — See 


66  B    R    O    K     E    R. 

— See  Cafes  adjudged,  Willis  v.  Butler, Thofe  wlio  exercile  the   function 

of  broker  ought  to  be  men  of  honour,  capcij)le  of  their  bufinefs,  prudent,  and 
avoid  babbling. — Lex  Merc,  rediv.  456. 

q.  By  Stat.  6  Ann.  c.  16.  f.  4. — All  perfons  that  fliall  ad  as  brokers 
within  London,  fliall  be  admitted  by  the  court  of  mayor  and  ahlermen,  under 
fuch  reflriftions  for  their  good  behaviour  as  the  court  fliall  think  fit ;  and 
fhall  upon  their  admiflion  pay  to  the  chamberlain  40s.  and  fliall  alfo  yearly 
pay  40s.  upon  the  twenty-ninth  of  September,  for  the  ufe  of  the  mayor  and 

commonality  and  citizens  of  the   city  of  London. S.  5.  If  any  perfon  fliall 

take  upon  him  to  aft  as  a  broker,  or  employ  any  under  him  to  aft  as  fuch, 
within  the  faid  city,  not  being  admitted,  every  fuch  perfon  fliall  forfeit  to  the 
mayor  and  commonality,  &c.  for  every  offence,  twenty-five  pounds,  to  be 
recovered  byaftion  of  debt  in  the  name  of  the  chamberlain,  in  any  of  her 
majefly's  courts  of  record. 

10.  Re  M  A  R  K. — Whether  this  fl^atute  (by  the  words  "  All  perfons")  includes 
infurance  brokers,  I  fhall  not  prefume  to  determine  ; — it  is,  however,  certain 
that  no  regard  is  paid  to  it  by  them,  nor  do  they  aft  under  any  fuch  authority 
or  reftriction  ;    or  any  other  exprefs  regulation  or  control  whatever. 

11.  Insurance  brokers  who  make  out  policies,  are  to  keep  a  ^00^  to 
enter  them  in,  from  the  beginning  to  the  end ;  with  the  day,  month,  and  year, 
in  which  each  firm  was  made  ;  who  figned  it ;  with  tlie  quantity  and  price  ; 
under  penalty  of  t^venty  thoufand  maravedis,  with  lofs  of  office,  and  interell 

of  the  party. Whereas   many  infurers    abfent  themfelves,   or  die,    from 

whence  great  inconveniencies  arife,  the  acknowledgement  of  their  firms  being 
neceflary  for  the  recovery  of  the  lofles  and  averages  of  the  fubfcribed  policies ; 
we  ordain,  that  the  policy  being  figned  by  the  broker  who  made  it,  and 
teftimony  therein  given  by  him,  that  he  faw  the  contrafting  parties  fign  it, 
and  it  being  entered  in  his  book,   it  fliall  have  the  fame  effeft  as  if  it  was 

recognized  by  the  underwriters  to  be  their  own  fignature. No  broker  fhall 

fubfcribe  any  rifque  for  himfelf,  nor  fiar  any  other  perfon,  on  penalty  of  lofing 
his  office  :  and  no  one  may  fubfcribe  to  rifques  for  any  broker,  on  penalty  of 
thirty  thoufand  maravedis  for  every  time  of  figning. — Ordin.  of  Spain,. 

12.  Brokers  mufl:  take  care  how  the  policies  are  drawn  up,  and   keep 

copies  of  them,  which  may  be  regijlered. The  officers,  commiffioners  of  the 

chamber  of  afliirance,  their  fecretary,  his  fworn  clerk,  the  officers  of  the 
cuft:oms,  or  brokers  of  aflurance,  fliall  not  make,  nor  caufe  any  affinance  to  be 
made,  either  direftly  or  indireftly. — Ordin.  of  Middlcb. 

13.  Brokers  fliall  be  obliged  to  fgn  the  policies. They  ffiall  likewife 

keep  an  exaft  regijler,  confifting  of  printed  policies,  upon  which  they  are  to 
fpecify  all  the  alterations  in  the  felf-fame  words  as  are  mentioned  in  the 
policies  they  deliver  out. Brokers  afting  contrary  to  any  of  the  foregoing 

articles. 


BROKER.  67 

articles,  fliall  forfeit  their  falary,  and  four  times  the  fum  befides,  for  the  benefit 
of  the  poor.  And  for  any  grofs  negligence,  or  fufpicion  of  being  parties 
concerned  in  any  fraud,  they  {hall  be  moreover  puniflied  with  fufpenfion,  or 
difcharge  from  their  office,   or  otherwife,  according  to  the  nature  of  the  cafe. 

Brokers  may  not  affure  themfelves,  nor  by  others,    direftly  nor  indireftly, 

under  the  forfeiture  of  one  hundred  guilders,  and  the  lofs  of  their  place. 

When  brokers  have  difburfed  the  premium,  they  (hall  have  the  right  of  an 
obligation  to  the  policy,  and  may  flop  the  fame. — Or  din.  of  Rott. 

14.  Brokers  fliall  be  obhged  to  make  ufe  of  and  employ  no  other  policies 
but  fuch  as  are  privileged  and  figned  by  the  fecretary :  and  they  fliall  keep 
copies  of  all  that  is  written  in  them  by  hand,  on  pain  of  lofing   their  earned 

falary,  and  four  times  as  much  to  and  for  the  benefit  of  the  poor.  Sec- The 

brokers,  or  others,  who  procure  any  infurance,  fliall  not  be  allowed  to  be 
infurers  themfelves. — Ordvn.of  Avifl. 

15.  It  is  abfolutely  forbid,  for  any  of  the  afiurance  brokers,  or  like- 
wife  the  difpatcher  of  averages,  to  affure  others.  And  if  the  fame  fliould  be 
done,  fuch  afllirance  (hall  be  held  null  and  void,  and  the  broker  or  difpatcher 

fliall  be  arbitrarily  puniflied  for  the  fame. ^o  others  than  fvjorn  brokers, 

that  fl:and  on  the  lift,  and  are  well  verfed  in  writing  and  accounts,  that  are 
freemen  of  this  city,  and  confl:antly  refide  here,  are  to  be  employed  in  the 
making  any  contrafts  of  affurances  ;  and  no  agreement  or  bargain  for  afiurance 
is  to  be  concluded  by  any  body  elfe,  under  the  forfeiture  of  fifteen  rix-dbllars 
for  every  offence ;  the  merchants  may  however  make  affurances  among 
themfelves,  without  a  broker,  at  their  pleafure.——Thefe  brokers  are  liot  to 
trade  for  themfelves  in  any  fliape,  nor  be  concerned  direftly  or  indireflly  in 
diny  flips  or  their  cargoes,  on  forfeiture   of  their  privilege    to  aft  as  brokers. 

The  brokers  are  obliged  to  keep  an  exaft  book  and  account  of  all  xafes 

and  IraifaEions  in  affurances ;  in  which  are  to  be  carefully  noted  the  contrafts 
they  conclude,  according  to  their  dates,  as  likewife  the  advices,  whereof  they 
have  given  notice  to  affurers ;  and  further  they  are  to  fpecify  therein  the  day, 
on  which  fuch  notifications  were  made,  and  in  .what  manner  the  affurers 
expreffed  themfelves  in  relation  thereunto,  and  what  is  agreed  upon  in  the 
meetings  concerning  the  fame;  in  order  that  they  may  be  able  to  give  a 
certain  and  fufficient  evidence  of  their  tranfaftions,  by  producing  of  tliofe 
books,  when  fuch  an  account  is  required  from  them  ;.  and  this  on  penalty  of 
not  only  forfeiting  their  brokerage,  but  of  feverer  punifiments ,  if  they  are 

found  to  have  been  guilty  of  any  negleft  or  irregularity. A  broker,  that  has 

received  fome  premium,  and  does  no'ipay  the  fame  to  the  affurcr,  but  defign- 
edly  with-holds  it  from  him;  fliall  be  publifhed  on  the  exchange  for  a  man 
negleftful  of  his  duty,  and  fliall  never  be  employed  in  making  of  affurances 
again. If  any  one  that  is  afl'ured  himfelf,  or  a  fworn  ^broker,  &c.  fhould  aft 

fraudulently, — impofe  upon  the  infurers, — or  aft  difhonejlly, — although  the  lofs 
did  not  aftually  happen, — he  fliall,  according  to  the  nature  and  circumflances 
of  the  crime,  be  profccutcd  as  a  criminal,  Sec. — Ordin.  of  Hamb. 

16.     Brokers 


0  B    R    O    K     E     R; 

16.  Brokers  ftiall  not  be  concerned  in  infurances  direcily  or  Indlrecdv 
them/elves,  or  by  other  perfons,  or  take  any  ceffion  of  the  rights  or  interejl  ot' 
the  infured,  under  the  penalty  of  500  livres  for  the  firfl  time,  and  in  cafe  of 
repetition,  to  be  deprived  jof  their  employment :  which  penalties  Ihiall  not  be 

in  any  manner  moderated. We  enjoin  under  the  above   penalty  that  they 

keep  a  proper  regijter,  marked  on  every  leaf  by  the  lieutenant  of  tiie 
admiralty,  wherein  they  fhall  keep  an  account  of  the  policies  they  Ihall  draw 
up. — Or  din.  of  Fraiue.  J  -^ -' 

17.  No  other  brokers  fhall  be  employed  in  infurances  than  thofc  who  are 

fworn  and  appointed  by  the  magiflracy  of  the  place. The  broker  (hall  truly 

declare  all  that  he  knows  concerning  the  infurance,  and  not  prefume  to 
conceal  any  circumftances  relating  to  it,  or  wreft  them  differently  from  what 
they  in  reality  are  ;  but  much  lefs  Ihall  he  conceal  or  promote  i\x\y  fraud  ov 
impofition  in  it : — according  to  the  nature  of  his  offence,  and  the  circum- 
ftances, he  ftiall  be  liable  to  a  capital,  or  other  condign  puniflimcnt : — he 
(hall  punftually  enter  in  his  book  all  advices  which,  at  the  defire  of  the  infured, 
he  has  reported  to  the  infurer  concerning  the  ftiip  and  goods,  fpecifying  the 
day,  month,  and  year,  when  fuch  advices  were  given,  and  likewife  what  the 
infured  faid  on  fuch  occafions :  any  neglect  hereof  appearing,  the  broker 
fhall  forfeit  his  brokerage ;  but  in  cafe  of  any^  prepenfe  deceit,  he  fiiall  be 
punijhed  according  to  the  nature  of  the  cafe. — Ordin.  of  Stockh. 

i8.  In  France,  a  broker  of  any  kind  whatfoever,  cannot  take  a  perfonal 
intereft  in  any  of  the  objefts  which  his  office  relates  to  ; — and  he  is  forbid 
to  infert  in  any  policy  of  infurance  any  mark,  memorandum,  or  alteration, 
which  is  not  figned  by  the  parties. — 2  Valins  Comm.  153. 

19.  The  cuftomary  brokerage,  in  England,  on  policies  of  infurance,  is 
5  per  cent,  on  the  premium,  howfoever  large  ;  or  one  (hilling  upon  every 
pound  (or  upon  every  guinea,  if  the  premium  be  in  guineas) : — it  is  allowed 

by  the  infurer. In  feveral  other  countries,  it  is  fettled,   by  authority,  at 

about  one  quarter  per  cent,  more  or  lefs,  on  the  fum  infured  ;  and  the  brokers 
are  obliged  to  anfwer  for  the  premium  ;  which  however  they  ufually  receive, 
as  well  as  pay,  in  a  fhort  time. 

20.  See  Prelim.  Life.  22,  31,  36,  53,  54.  Alteration,  Blank,  Concealment, 
Deviation,  Fraud,  Intelligence,  Order,  Policy,  Premium,  Regijler,  Stocks, 
Written  Claufe. 

BUILT. 

See  Irifufficiency,  Regijler -Office,  Ship,  Ship- Building. 


CABLE. 


c. 


CABLE. 

1.    ^^  ABLE  S,   of  what  thickncfs  foever,  are  generaHy  formed  of  three 
R  ropes  twilled,  together,  which  are  then  called  flrands :  each  of  thefe 

is  compofed  of  three   fmaller  flrands  ;   and  thofe  lafl  of  a   certain 
number   of   rope-yarns.     This   number   is    therefore    greater   or   fmaller   in 
proportion  to  the  fize  of  the  cable  required. — There  are  fome  cables  however, 
manufactured  of  four  flrands;   which  are  chiefly  the  production  of  Italy  and 
Provence. — All  fhips   ought  to  be  furnifhed  with  at  leafl  three   good  cables  ; 
the  fheet  cable  and  the  two  bowers ;  bell  and  fmall. — All  cables  ought  to  be 
120  fathoms   in  length  :    for  which  purpofe  the  threads  or  yarns  mufl  be  180 
fathoms  ;   inafmuch   as  they  are  diminifhed  one  third  in  length  by  twilling. 
Befides  this  length,  it  is  neceffary  to  fplice   at  leafl  two  cables    together,  in 
order  to  double   the  length  when  a  fhip  is  obliged  to   anchor  in  deep  water  : 
for  although  it  is  not  common  to  anchor  in  a  greater  depth  than  forty  fathoms, 
yet  if  there  is  only  one  cable,  and  the   fhip  rides  in  a  florm  and  tempefluous 
fea,  the  anchor  will   of  neceffity  fuflain  the  whole  weight  and  violent  jerking 
of  the  fhip,  in   a  direftion   too  nearly  perpendicular.     By    this  effort   it  will 
unavoidably  be  loofened  from  it's  hold,  and  dragged  by  the  fhip,  which,  thus 
driven  from  her  flation,    is    in  immediate  danger  of  being   wrecked  on  the 
nearefl  rocks  or  fliallows  :  whereas  it  is  evident,  that  if  the  cable,  by  it's  great 
length,   were  to  draw  more  horizontally  o,n  the  anchor,  it  would  bear  a  much 

greater  force. The  long  cable   is  not  fo  apt  to  break   as  the  fliort  one  ; 

becaufe  it  will  bear  a  great  deal  more  llretching  before  it  comes  to  the  greatefl 
ftrain :  it  therefore  refembles  a  fort  of  fpring,  which  may  be  very  eafily 
extended,  and  afterwards  recovers  it's  firfl  flate,  as  foon  as  the  force  which 
extended  it  is  removed,  Befides  all  this,  a  fhip  will  ride  much  fmoother  with 
a  long  cable,  and  be  lefs  apt  to  pitch,  or  plunge  deep  in  the  water  with  her 
fore  part. — On  the  contrary,  the  fhort  cable  being  too  nearly  vertical  to  the 
anchor,  cannot  bear  fuch  a  flrain,  becaufe  it  is  charged  with  a  greater  effort ; 
and,  as  it  will  not  bear  flretching,  may  break  at  the  firfl  violent  tug.  The 
(hip  alfo  rides  with  much  greater  difficulty,  labours  extremely,  and  often 
plunges  all  her  fore  part  under  water. — Falc.  Mar.  Di6i. 

2.  By  what  has  been  faid  on  this  fubjeft,  we  may  fee  how  very  neceffary 
it  is  to  furnifh  a  fhip  \^\\h  Jitficiency  of  cables,  or  what  is  called  ground -tackle  ; 
and  what  an  inconfiderate  policy  it  is  in  merchants  to  expofe  their  veffels  to 
fuch  evident  dangers  from  the  want   of  them  :    for  many  goodjiiips  have  been 

T  loft 


70  CADIZ. 

lojl  not  only  on  account  of  a  deficiency  m  this  very  important  article,  but  alfo 
through  the  rogueries  fometimes  pradifed  in  the  manufa61uring  of  it. 

By  Stat,  Q5  Eliz.  c.  8.  f.  3. — If  any  perfon  fliall  make  cables  of  old 
and  over-worn  fluff,  which  fliall  contain  above  feven  inches  in  compafs,  every 
perfon  fo  offending  fliall  forfeit  four  times  the  value  :  and  if  any  perfon  fliall 
tar  any  halfers,  or  other  cordage,  made  within  this  realm  of  fuch  old  and 
over-worn  flufP,  being  of  Icfler  affize  and  not  containing  in  compafs  feven 
inches,  and  fliall  by  retail  put  to  fale  the  fame,  being  fo  tarred  ;  every  perfon 
fo  offending  fliall  forfeit  the  treble  value,  one  moiety  to  the  Oueen,  and  the 

other  moiety  to  fuch  as  will  fue  for  the  fame  by  aftionof  debt,  &c.^ S.  4. 

Every  perfon  which  fliall  off'end  againft  this  aa  fliall  be  imprifoned  during  her 
Majefty's  pleafure. 

4.     S^E  Accident,  Anchor,    Cordage,    Cutting,  General  Average,  Infvffici- 
ency.  Repair,  Stranding,  Wear  and  Tear. 

CADIZ. 

1.    Form  of  a  Policy  ufed  at  Cadiz-* 


I 


N  the  name  of  God,  Amen.     Wc  the  underwriuen  do  acknowledge  and  confcfs  that  we 
inruretoyouMeflieurs  for  account  of  whom  it 

may  concern,  upon  effeds  loaded  in  the  fliip  (which  God  prcrerve  and  keep)  named  the 
captain  (Englifli)  of  tons  burthen, 

puns,  men,  allalitdemore  or  lefs,  from  to  or  any 

other  that  fliall  go  for  captain  of  the  faid  (hip,  and  the  cargo  fhe  fliall  have,  belonging  to 
the  abovefaid,  to  you  to  whom  in  any  time  you  fliall  declare  it  does,  or 

may  belong,  or  ought  in  any  manner  or  reafon  whatfoever.  And  it  is  agreed  by  an  exprefs 
contraEl,  adjufted  with  us  the  underwriters  in  this  policy,  that  in  cafe  of  lofs,  theft,  or 
other  damacre  or  difafter,  that  fliall  happen  to  the  faid  mcrchandifc,  or  fruits,  eiiher  totally  or 
in  part,  you  fliall  not  be  obliged  of  the  abovefaid  to  exhibit  the  cuftom-houfe  dilpatch,  nor 
any  other  clearance,  of  it's  quality,  quantity,  or  value  : — but  with  ateftimonial  only  of  the 
lofs  or  damage  that  it  fliall  have  received,  or  your  fimple  oath,  or  any  bills  of  lading,  or 
accounts,  that  you  fliall  extrajudicially  fliew  us,  as  it  is  here -under  declared  ;  we  will  fairly 
pay  the  whole,  or  that  fliare  of  the  damage  that  fliall  refpcQively  touch  us,  in  money,  and 
not  othcrwife,  without  lawfuit.  reply,  or  any  contradiftion,  for  we  fo  oblige  ourfelves. 
To  which  faid  rifque  we  bind  ourfelves  from  the  day,  and  hour,  that  the  abovefaid,  or  any 
thing  be^an,  or  fliall  begin  to  be  loaden  from  fliore  in  any  boat,  fliiff,  or  in  any  other  vcffel 
or  veflels,  to  convey  it  to  the  faid  fliip,  wherefoever  flie  fliall  be.  And  the  abovefaid  being 
fo  loaded  in  the  faid  fliip,  letherpurfue  her  prefcnt  voyage,  with  the  good  fuccefsthat  God 
fliall  give  her,  for  and  the  abovefaid  being  fo  delivered  from  the  (aid  fliip, 

in  any  boat,  flciff,  lighter,  or  barge,  until  it  be  landed  infafety.  And  it  is  ai^rcedthat  the 
faid  fliip  may  flop  wherever  fhall  be  thought  proper,  and  convenient,  whether  forced  thereto, 
or  voluntarily  ;  going  into,  and  coming  out  of,  any  port,  or  ports,  bays,  or  bars,  delivering 
or  receiving  any  loading.  And  in  refpcft  of  the  value  or  coft  of  the  abovefaid ;  we  will  that 
your  Ample  oath,  and  word,  or  any  bills  of  lading,  or  accounts,  which  you  (hall  extrajudi- 
cially fliew  us,  fliall  be  credited,  without  your  being  obliged  to  any  other  proof,  or  diligence. 


although 


CANCELLING.  ft: 

although  of  light  required.  And  with  thefe  conditions  we  are  content  to  run  this  faidrifqu^/ 
the  which  is  underftood  of  fca,  wind,  fire,  friends,  and  enemies,  of  any  nation  whatfoever,.- . 
which  either  with,  or  without  juft  caufe,  fiiall  detain,  or  take  the  faid  fhip,  or  merchandife; 
or  of  any  other  premeditated,  or  unthought-of  cafe,  that  may  or  can -happen,  in  any  manner, 
or  accident  that  falls  out,  except  barratry  of  the  mafter,  or  deficiency  of  the  abovefaid,  and 
of  the  faid  merchandife  and  fruits.  And  if  (which  God  forbidj  any  accident  fhall  happen, 
and  for  the  advantage  of  the  abovefaid  it  fhall-bc  neceffary,  to  lay  hands  on  it,  benefit  it, 
and  convey  it  from  one  fhip  to  another,  and  from  that  to  a  third,  as  well  at  fea,  as  from 
fhore,  in  any  port,  or  ports ;  to  deliver  it  on  land,  or  reload  it  in  the  faid  fliip,  or'in  any 
other  veffel,  orvcfTels,  they  or  yO'li  may  do  it,  withcicft  any  prejudice  :  and  we  isy  that  the 
charges  which,  this  fhall  occafion,  we  will  pay,  whether  the  abovefaid,  or  part  of  It,  be 
preferved,  or  not.  And  it  is  agreed  that  the  mafter,  or  the  perfon  taking  charge  of  the  faid 
fhip,  may  fail  as  he  pleafes,  forward  or  backward,  where  he  will,  or  thinks  proper,  not 
altering  the  voyage,  except  to  join  with  fome  company,  or  fleet.  And  if  (which  God  forbid) 
the  faid  fhip  fhall  be  loft  at  fea,  or  in  any  other  part,  and  a^ear  and  a  (fo/j'  fhall  pafs  after  her 
lofs,  without  any  certain  "heios  of  her  arrival  at  the  faid  port,  or  at  arty  other  ;  we  will  pay  the 
fum  that  each  of  us  infured.  And  in  cafe  of  a  lofs,  with  a  certificate  made  with  or  without 
the  party,  in  the  place  where  flie  fliall  be  loft  or  in  any  other,  and  without  a  citation  on 
our  parts,  we  will  fairly  pay,  difburfe,  and  put  into  your  power, 

after  the  expiration  of  fix  months,  from  the  day  of  the  date  hereof,  in  royals  of  plate ;  or 
into  that  of  the  perfon  who  fhall  be  impowered  by  you  /  all  that'fiial!  appear  here  written^  and 
figned  with  our  names,  or  that  part  of  the  damage,  that  it  fliall  concern  us  to  pay  :  provided 
that  firft,  and  before  all  things,  you  give  us  legal,  "fair  and  creditable  yi«rd/f5  to  ^?iX\d-  trial 
with  us,  if  we  have  any  thing  to  fay  and  allege  againft  the  payment :  for  the  which  we  oblige 
our  perfons  and  effeCls,  and  give  power  to  all  and  any  juftices  of  our  Lord  the  King, 
efpecially  to  thofe  of  this  city  of  that  they  compel  and  force  us  by  all  the 

rigour  of  law,  fo  to  keep,  obferve,  and  perform  it,  as  if  a  definitive  fentence  had  been  given 
on  it  by  a  competent  judge  for  us  and  to  each  of  us  loft,  admitted,  .and  without  appeal : 
and  we  renounce  all,  and  every  law  in  our  favour,  and  that  of  right,  which  fays,  that  a 
general  renunciation  of  laws  non  valet.     Dated  in  Cadiz,  the  day  of  the  month  of 

of  one  thoufand  feven  hundred  and 

I  am  content  to  run  the  rifque  in  the  faid  Jhip,  which  God  preferve,  and  keep,  in  conformity  to  this 
policy  for  one  hundred  doublons,  of  two  efcudos  of  gold  each,  and  em  paid  the  premium  in  ready 
vioney,  at  the  rate  of  per  cent.     Dated  at  Cadiz,  the  day  of  (^c. 

2.     See  Alteration,  Barratry,  Bottomry,  Lofs,  Policy,  Salvage,  Voyage. 


CANCELLING, 

1.  T?  VERY  underwriter  of  a  policy  fliall  be  bound  for  the  fum  infured  and 
•*— ^  mentioned  therein ;    no  name  in  the  policy  fliall  be  erafed,   nor  any 
one  difcharged  of  his  obligation,  unlefs  with  the  joint  aflent  of  all  who  figned 
the  policy. — Ordin.  of  Stockh. 

2.     It  is  ever)'  where  the  ufage,  when  underwriters  cancel  their  fubfcriptions 

to 


7a  CAPTURE. 

to  a  policy,  for  there  being  no  interelti  or  no  rifquc,  or  fhort  intereft,  to  allow 
them  to  retain  an  half  per  cent. 

3.     See  Alteration,  Double-Infurance,  Prior- Ivfurance,  Return. 


CAPTIVES. 

I,.  npHE  24th  article  of  the  lirft  ordinance  of  Amflerdam,  prohibits  the 
-■-  making  infurance  on  any  lives  whatfoevcr ;  and  many  people  con-, 
found  liberty  with  life,  im^ining  that  infuring  the  one,  was  not  more  lawful 
than  the  other ;  which  occahoned  many  difficulties  between  the  owners  of 
fhips,  and  their  captains,  bound  to  the  Mediterranean  and  the  adjacent  parts, 
where  they  run  the  rifque  of  being  taken  by  the  Turks,  when  at  war  with 
them  ;  and  on  the  leaft  rupture  that  we  now  have  with  any  one  of  the  Rates  of 
Barbary,  the  captains  defigned  for  the  Mediterranean,  will  by  no  means  fail, 
'till  their  owners  have  infured  3  Or  4000  guilders  upon  their  liberty,  in  order 
to  redeem  them  with  this  money,  in  cafe  they  are  fo  unfortunate  as  to  be 
taken. — Ricard's  Negoce  d'  Amjl. 

2.  Those  who  fhall  redeem  captives,  may  infure  ort  them  the  price  of 
their  ranfom,  which  the  infurers  fhall  pay  if  in  their  way  back  they  fhall  be 
retaken,  killed,  drowned,  or  if  they  die  otlierwife  than  by  a  natural  death. — ■ 
Ordin.  of  France. 

3.  By  application  of  the  difpofition  of  the  above-mentioned  article  to  a 
fimilar  cafe,  the  cuftom  hath  been  introduced,  in  France,  with  regard 
to  voyages  to  Guinea,  to  infure  black  captives  ((laves)  from  thence  to  the 
colonies. — 2  Valins  Coinm.  55. 

4.  See  Africa,   Barbary,    Lives,  Slaves,  Turkey. 


CAPTURE. 

1.  TNSURERS  are  liable  for  all  damages  and  charges,  proceeding  from 
■*-  any  capture,  detention,  or  reprifal,  except  it  can  be  proved  that  the 
infured  defignedly  concealed  circumflances  from  them,  which  he  knew  might 
expofe  the  (hip  to  fuch  accidents,  and  therefore  would  not  declare  them,  to 
avoid  giving  more  than  a  common  premium :  but  whatever  contraband  goods 
may  have  been  clandeftinely  fliipped  by  other  people,  unknown  to  the 
infured,  and  the  veflel  thereby  cxpofed  to  a  capture  or  detention,  cannot  in 
any  fliape  prejudice  his  infurance,  unlefs  the  infured  ftipulated  that  the 
underwriters  fliould  be  free  of  captures. — In  the  laft  war  feldom  any  other 
declaration  was  made,  but  that  the  infured's  interefl  confifled  in  neutral 
property,  and  not  in  any  contraband  goods  ;    yet  the  variety  of  circumflances 

which 


CAPTURE.  73 

vhich  occurred  will  not  eafily  be  forgot,  as  hardly  any  one  of  the  general 
fliips  pafiTed  free,  without  great  charges. — i  Mag.  75. 

2.  The  Civilians  hold,  that  it  is  not  every  pofTelFion  that  qualifies  a 
caption,  and  makes  it  become  the  captor's,  but  a  firm  pofielTion,  that  is, 
when  the  prize  doth  pernoElare  with  the  enfemy,  or  remains  in  his  poffeflion 
by  the  fpace  of  24  hours  ;  but  as  this  is  a  new  law,  fo  it  is  conceived  to  be 
againft  the  ancient  judgments  of  the  civil  law,  as  well  as  the  modern  practice 
of  the  common  law  :  for  the  party  in  the  ancient  precedents  doth  not  mention 
by  his  plea,  that  the  prize  did  pernoElare  with  the  enemy,  but  generally  that 
the  fame  was  gained  by  a  battle  of  the  enemy. — Molloyi  b.  1.  c.  1.  f.  13.  cites 
7  R.  2.  Trefpafs.— 5/ai;/iflw,  PI.  54. 

3.  A  CAPTURE  by  z.  pirate  (and  in  Spain,  Venice,  and  England,  the 
goods  go  to  the  captor  of  the  pirate,  againft  the  owner,  as  there  can  be  no 
condemnation,  to  entitle  the  pirate) ;  or  a  capture  under  a  commiffion,  where 
there  is  no  war,  do  not  change  the  property  : — ^yet,  as  between  the  infurer 
and  infured,  they  are  juft  upon  the  fame  foot  as  the  captures  by  an  enemy. — 
This  point  never  would  have  been  ftarted  in  policies  upon  real  intereft; 
becaufe  it  never  could  have  varied  the  cafe  :  but  w^s^fr-policies  gave  rife  to 
it :  it  was  neceffary  to  fet  up  a  total  lofs  as  between  third  perfons,  for  the 
purpofe  of  their  wager  ;    though  in  faft  the  fhip  was  fafe,  and  reftored  to  the 

owner. In   the  cafe  of  AJfievedo  v.  Cambridge,  the  man   of   war   which 

retook  the  (hip,  brought  her  into  the  port  of  London,  and  reftored  her  to  the 
owner  upon  reafonable  redemption  (that  appears  from  the  fpecial  verdift  ; 
though  not  ftated  in  Lucas)  :  and  then  the  owner,  not  abandoning  the  ftiip, 
could  only  have  come  upon  the  infurers  for  the  redemption ;  and  no  queftion 
could  have  arifen  upon  the  change  o^ property  :  but  the  policy  being  interejl 
or  no  intereft,  without  benefit  of  falvage,  the  queftion  arofe   upon  the  terms 

and  meaning  of  the  wager. — That  caufe  was  not  determined. In  the  cafe 

oi  Spencer  v.  Franco,  before  Lord  Hardwicke,  at  Guildhall,  1735,  the  fouth- 
fea  ftiip,  Prince  Frederic,  had  returned  fafe  to  the  port  of  London,  with 
her  cargo:  the  wagerers  contended,  "  flie  was  totally  loft  at  La  Vera  Cruz," 

from  this  notion  of  a  change  of  property ;  but  failed. De  Paiba  v.  Ludlow^ 

was  alfo  a  wager-policy ;  and  the  property  could  not  be  changed,  becaufe 
there  was  then  no  war,  nor  even  a  declaration  of  war  :  but  the  court  held, 
that  as  the  ftiip  was  taken  in  faft,  the  event  had  happened,  though  ftie  was 
afterwards  recovered." — So  in  the  cafe  of  Pond  v.  King,   which  was  alfo  a 

wager-policy. But  in  the  cafe  of  Pole  v.  Fitzgerald,  the  majority  of  the 

judges  and  the  houfe  of  lords  (in  1754,  by  the  name  of  Fitzgerald  v.  Pole) 
held,  "  that  though  the  ftiip  might  be  deemed  for  a  time,  as  loft :  yet,  as  ftie 
was  afterwards  recovered,  the  event  of  a  total  lofs  had  not  finally  happened, 

according  to  the    conftruflion   of  the  wager." Thefe   are  all  the  cafes 

where  this  queftion  [o^  change  o^  property)  has  been  debated. — Ld.  Mansfield, 
in  Go/s  and  Withers, 

:l .: 

U  4.    No 


71 


C    A    ¥    T    U    R    E. 


4.  No  capture  by  the  enemy,  though  condemned,  can  be  fo  total  a  lofs  as 
to  leave  no  polTibility  of  a  recoveiy.  If  the  owner  himfelf  fhould  retake  at 
any  lime,  he  will  be  enliiled  ;  and,  by  the  aft  of  parliament,  if  an  Englifli  (hip 
retakes  at  any  time  (before  condemnation  or  after)  the  owner  is  entitled  to 
reflituiion  upon  Haledyalvage  ;  this  chance  does  not  fufpend  the  demand  for 
.<a  total  lofs  upon  the  infurer :  but  juftice  is  done,  by  putting  him  in  the  place  of 
•ilie  inlured,  in  cafe  of  a  capture. — Ibid. 

5.  Case.  The  defendant  was  proprietor  of  a  fhip  called  the  Conftant 
Mary,  and  fent  her  to  fea,  where  (he  was  taken  off  Yarmouth,  on  the  high 
feas,  by  oneDubart,  of  Dunkirk,  who  fold  her  to  the  plaintiff;  after  which 
the  fliip  being  at  Spithead,  the  defendant  feized  her  by  the  admiralty  procefs, 
whereon  a  fuit  was  commenced  in  the  admiralty  court  by  the  defendant  againft 
the  faid  fliip  ;  and  then  Terremoulin  came  in  for  his  intereft,  and  fuggefled,  that 
the  fliip  was  his,  and  that  he  had  been  in  poffelfion  of  her  three  years  la  ft  paft, 
and  prayed  his  polfeflion  might  be  reftored  ;  whereon  Sandys  put  in  his  libel, 
that  he  was  pofl'efl'ed  of  .the  faid  (hip  divers  years  till  1689,  that  then  the  fliip 
itas  forcibly  taken  away  from  him,  M^ithout  faying  on  the  high  feas,  and 
thereon  prayed  reftitution. — Terremoulin  replied,  that  the  ftiip  was  taken  by 
one  Dubart  on  the  high  feas,  who  fold  it  to  him  at  Bergen,  in  Norway. — 
Sandys  rejoined,  that  after  the  taking,  the  fliip  was  never  condemned  as  a 
prize,  and  fo  his  property  ftill  continued  :  accordingly,  after  examination  of 
the  cafe,  the  admiralty  gave  judgment  for  Sandys  ;  for  a  capture  without 
condemnation  alters  not  the  property  by  their  law ;  whereon  Terremoulin 
appealed  to  the  delegates ;  and  now  againft  his  own  appeal  prayed  a  pro- 
hibition.— Holt,  C.J.  The  libel  does  not  fay,  that  the  violent  taking  away 
was  atjia ;  and  if  it  was  not,  what  have  the  admiralty  to  do  Math  it,  and 
how  can  it  be  cured  by  any  fubfecjuent  matter  ;  for  if  the  admiralty  have  not 
tlie  conufaace  of  the  original  caufe,  though  a  civil  queftion  arife,  they  fliall 
riot  have  jurifdiciion  ;  and  if  they  have  jurifdiftion,  and  a  common  law- 
queftibn  arife,  yet  they  Ihall  determine  it. — And  Holt,  C.  J.  and  Rokeby,  J. 
were  of  opinion,  that  a  prohibition  fliould  iffue,  becaufe  the  libel  was  a  mere 
fcplcviii  at.  common  law. — ButTurton  and  E)re,  J.  held  othervvife  :  becaufe 
it  appeared  by  a  fubfctptent  allegation,  that  the  capture  was  on  the  high  feas  ; 
wherefore  the  rule  for  the  prohibition  was  difcharged. — 12  Mod.  Rep.  143, 
I  Raynu  271. — Michv  g^  W.  ^.^^Terremmilin,  or  Shcrmoiirlin,  v.  Sandys, 
Qx  Sairiis,  -^  ^^J*^i'' 

,r>  olI«  ; 

^^15.'1'JC^ASE.  Upon  a  fpecial  verdift,  the  cafe  in  fubftance  appeared  to  be  this : 
Aflievedo'had  infured  fo  much  money  upon  a  fhip  called  the  Ruth,  for  fuch  a 
voyage,;  in  which  {hip  Aftievedo  isfourtd  by  the  verdift  not  to  be  at  all  con- 
cerned in  point  o^  inter ejt.  It  happened  that  this  ftiip  was  taken  by  the  enemy, 
and  kept  in  their  poneflron  for  nine  days,  and  then  before  it  was  carried 
"  infra  pra;fidia,"  viz.  a  place  of  fafety,  it  was  retaken  by  an  Englifli  man  of 
w^ar :   and  whether  or  no  this  was  fuch  a  taking  as  fhould  enable  the  plaintiff 

to  recover  the  fum  infured  againft  Cambridge,  was  the  queftion. ^It  was 

argued 


CAPTURE. 


70 


argued  by  Dr.  Floyer  for  the  plaintiff,  and  Dr.  Henchman  for  the  defendant. — 
The  fubftance  of  the  argument  for  the  plaintiff  was,  that  this  was  rather  to  be 
efleemed  a  wager  than  an   infurance  ;   a  fpei  eviptio  et  vendiLio,  and   not  a 
verfo  periculi ;    which,   in  the   books  of  the  civil  law,   is  looked  upon  as  a 
proper  definition  of  an  infurance  :  that  therefore  whatever  afts  of  parliament 
are  made  about  infurances,  muff  be  underftood  of  proper  infurances,  and  not 
infurances  of  the  goods  of  flrangers  t    that  whether  or  no  this  is  fuch  a  taking 
as  will  divefl  the  property  out  of  the  owners,  is  a  queftion  properly  between 
them  and  the  retakers.     But  the  queftion  between  Aflievedo  and  Cambridge, 
is  only  whether  the  ffiip  is  taken.' — This  cafe  was  compared  to  a  man  laying  a 
■wager  that  he  (hould  not  be  robbed  in  going  to  fuch  a  place  ;    he  is  robbed  ; 
but,   taking  fome  perfons  along  with  him,  purfues  the  robber,  and  recovers 
what  he  loft :    here,  though  the  money  is  recovered,  yet  the  wager  is  loft. — 
So  if  the  wager  had  been,  that  fuch  perfons  ftiould  not  be  married  together  ; 
they  are  married  ;    and  afterwards  divorced,  prcEcontraEliis  cau/'a ;    yet  the 
wager  is  loft. — It  was  faid  further,  that,  without  this  expofition,    Cambridge 
would  have  two  chances,  viz.  that  it  is  not  taken,  or   that   it  is   retaken ; 
biit  Affievedo  would  have  but  one,  viz.  the   taking. — Grotius,  in  his  treatife 
de  Jure  Belli  &  Pads,  lib.  3.  c.  6.  f.  3.   lays  this  down  as  a  rule,  "  Placuit 
gentibus,  ut  is    cepiffe  rem  intelligatur,  qui   ita  detinet  ut  recuperandi  fpem 
probabilem.  alter  amiferet :"    now,  in  our  cafe,  the  ftiip  was  for  nine  days  in 
the  poffeffion  of  the  enemy. — By  the  laws  of  Spain  and  France,  a  continuance 
in  the  poffeffion  of  the  enemy  for  "  twenty-four  hours"  is  an  alteration  of  the 
property  ;    arid  Albericus  Gentilis  tells  us,  that  a  pernoftation  with  the  enemy 
would,  by  our  old  £nglifti   law,  alter  the  property .-^And   Grotius,  imme- 
diately after  the  place  before  mentioned,  fays,  that  "  recentiori  jure  gentium 
inter  Europceos  populos  introduftum  videmus,  ut  talia  capta  cenfeantur,  ubi 

per  horas  viginti  quatuor  in  poteftate  hoftium  fuerint." For  the  defendant 

it  was  argued,  that  furely  the  law  would  not  put  an  infurer,  non  bona  fide,  or  a 
wagerer,  in  a  better  condition  than  one  that  infured  bona  iide,  and  fay  that  any 
thing  ftiall  enable  a  wagerer  to  recover ;  but  that  no  taking,  but  fuch  as  alters 
the  property,  Ihall  enable  a  real  bona  fide  infurer  to  recover. — This  queftion, 
in  the  court  of  admiralty,  would  not  have  borne  a  difpute  ;  for  the  law  is  clear, 
that  not  length  of  time,  but  the  bringing  "  infra  praefidia,"  into  a  place  of 
fafety,  is  that  which  divefts  the  property.  And  for  that,  the  cafe  of  Terremoulin 
and  Sandys,  in  the  late  war,  was  cited  ;  where  the  fliip  was  taken  by  Dubart  in 
the  year  1691,  off  Yarmouth,  carried  to  North-Bergen,  then  fold  to  A. 
afterwards  fold  to  B.  B.  fends  her  to  the  Weft-Indies,  afterwards  to  France, 
and  in  the  year  1695  to  England  ;  where  flie  being  retaken,  it  was  refolved 
that  the  property 'wdiS  not  altered. — The  words  of  the  judgment  in  this,  and  the 
like  cafes,  are  very  remarkable :  *'  in  praefenti  pertinere,"  is  part  of  the 
fentence  ;  fo  that  the  fentence  does  not  give  a  new  right,  but  confirms  an  old 
one. — In  the  civil  law,  alteration  of  property  is  a  thing  of  an  odious  nature  ; 
and  therefore  the  law  even  by  a  fiftion  prevents  it,  as  in  the  "jus  poftliminium ;" 
where,  lii  order  to  preferve  property  in  the  perfon  returning  "jure  poftli- 
fllinii,"  the  law  efteems  him  riever  to  have  been  a  captive,  that  fo  "  manente 
1:.  cive. 


76  C    A    P    T    U    R    E. 

cive,    niancant  fua   bona." — Lud.  Molin.   de  Jujlitia,   in  difpulationc.    118. 
"  Piioiibus  dominis  reditucnda  quae  capta  fuerint  a  militibus,   quibus  nume- 
rantur  flipendia.     Bello  res  per  vim  ufurpantur,  quando  ad  locum  tutum, 
&c." — Pciri.nus  Bcllus,pat.  3.  No.  11.  dc  Fojliiviinii  Jure  rcverfis.     "  Infupcr 
fciendum,  hoftibus  capta  non  ftalim  hoftium  fieri.     Milites  dicunt,   that  things 
fo  long  in  the  poflcilion  of  the  enemy  eorum  fieri :  jura  hoc  non  dicunt,  cum 
fieri  poteR  that  the  property  may  be  altered  by  the  pofiefTion  of  a  fhorter  time, 
and   forfan   not  altered  diuturniori  poUefiione/' — Confulat.  del  mare.   c.  287. 
A  book  of  great  authority,   lays  down  the    fecurity  of  the  place  into  which 
"  deducuntur  capta,"  as  that  which  caufes  the  alteration  of  property :  other- 
wife   after  a   proper  reward   for  the  retakers,  "  prioribus,    &c." — Albericus 
Gentilis,  in  the  place  quoted  by  the  advocate  for  the  plaintiff,  has  for  his  title 
thefe  words :  "  rem  non  fieri  hofiis  ante  deduftionem  infra  praefidia ;"   and  his 
determination  is  purfuant  to  his  title,  and  exprcfsly  againft  what  the  doftor 
quoted. — Groiius,   lib.  3.    c.  9.  f.  16.     "  Ea;vero  res,  quae  infra  praefidia  per- 
dufta;  nondum  funt,  quanquam  ab  hoftibus  occupatas,  ideo  poflliminii  non 
egent,    quia   dominum  nondum   mutarunt   ex   gentium  jure." — As    for   the 
quotation  out  of  Grotius,  "  Recentiori  Jure,  &c."     Grotius  builds  there  upon 
amiftaken  foundation;   for  he  quotes  Albericus  Gentilis,  lib.  3.  and  there  is 
no  third  book.     Indeed  in  c.  3.  lib.  1.  there  is  fomething  like  it ;    Grotius 
quoted  there  part  of  an  argument  without  confidering  the  conclufion,  which 
is  direftly  againfl  his  quotation  :    "  perduftionem  omnino  defiderant  omnia," 

fays  the  book. The  court  feemed  to  be  of  opinion  for  the  defendant ;    they 

thought  that  the  plaintiff's  being  found  by  the  verdift  to  have  no  intereft;  in 
the  fhip  which  he  infured,  fliould  make  no  difference.  Firjl,  Becaufe  they  would 
never  be  more  favourable  to  an  infurer  non  bona  fide,  or  wagerer,  than  to  one 
that  infured  bona  fide. — Secondly,  Becaufe  to  make  a  different  interpretation 
of  this  deed  from  what  is  commonly  put  upon  policies  of  infurance,  would 
be  to  run  counter  to  the  defign  of  the  parties,  who  have  made  ufe  of  the  very 
farne  words  that  are  ufed  in  fuch  policies ;  nay,  who  have  exprefsly  provided  for 
this  very  cafe  by  the  words,  interefl  or  no  interejl;  jwhich  words  fignify  nothing 
at  all,  unlefs  the  fame  lofs  entitles  to  a  recovery  where  the  infurer  has  no 
interell,  and  where  he  has  ;    and  that  \.\\c  property  is  not  altered  by  the  taking, 

they  held  to  be  very  plain. To  be  argued  next  term  by  common  lawyers. — 

Libg^rjj,  Hill.,  10.  Ajiu.  B. K.-^/lfievedo  y.  Cq-i^ikriflge- 

'f  7<. ;  Case.  AfTumpfit  upon  a  .policy  of  infurance,  where  the  defendant 
infured  the  plaintiff",  interejl  orno  interejl,  againft  all  enemies,  pirates,  takings 
at  fea,  and  all  other  damages  whatfoever. — ^And  iipon  trial  it  appeared,  that 
the  (hip  was  taken  by  a  pirate,  of  Sweden,  and  was  in  his  pon"effion  for  nine 
days,  and  then  was  retaken  by  an  Engliffi  man  of  war,  and  after  the  fuit 
commenced,  brought  into  Harwich.  And  the  queftion  was,  whether  in  fuch 
cafe  the  defendant  w^s  refponfible. — And  it  was  referved  by  the  chief  juftice 
for  the  opinion  of  the  court,  and,  after  argument  by  Serjeant  Whitaker  for  the 
plaintiff",  and  by  JOr.  ^enchman  for  the  defendant,  it  was  determined  for  the 
plaintiff. — — For  j-hgugh  it  was  objeded  that  the  infurer  was  only  refponfible 
«..;.,  *  where 


1 


CAPTURE. 


7 


n 


where  the  plaintiff  had  a  property,  and  that  the  term  of  infuring  interefl  orno 
intercjt  zvas  introduced Jince  the  revolution  ;  yet  it  was  faid  that  luch  inlurance 
was  good  ;  and  the  import  of  it  is,  that  the  plaintiff  has  no  occafion  to  prove 
his  interell,  and  that  the  defendant  cannot  controvert  that, — And  though  tlic 
fhip  was  here  retaken,  yet  the  plaintiff  received  a  damage  ;  for  his  voyage 
was  interrupted  ;  and  the  queftion  is  not,  whether  the  plaintiff  had  his  Ihip, 
and  did  not  lofe  his  property;  but  what  damage  he  fuftained. — Comyns  3601 
Mich,  J.  Geo.  1. — Dc  Paiba  v.  Ludlozo. 

8,     Case.     Upon  a  fpecial  verdift,  in  an  aftion  brought  on  a  policy  of 
infurance,   and  the   general  iffue  of  non  affumpfit  pleaded,  it  appeared    that 
the   defendant  had   underwrote  the  policy  in  queftion,    as  an   infurer  upon  a 
fhip,  called  the   Salamander,  being  a  privateer  for  a  coafting  voyage  for  three 
months. ^It  appeared  that  this  fliip  was  taken  by  a  French  man  of  war,  but 
was  afterwards  retaken,  and,  upon  payment  of  proper  falvage,  was    reftored 
to  the  owners. — The  breach  affigned  in  the  declaration  was  on   the  captui-e 
within  three  months  ;    and  the  general  queftion   appeared  to  be,  whether  the 
plaintiff  could  be  entitled  to  judgment  upon  fuch  a  cafe  .^^-Lee,  C.  J.  faid,  that 
thougli  this  fpecial  verdift  was  found  with  a  view  to  determine,  whether  there 
was  any  change  ox  alteration  in  xh&  property  of  the  fliip,  yet  the  court  were  all 
of  opinion,   that  they  ought  not  to  determine  the  merits  of  this  cafe  by  that 
queftion,  but  upon  the  policy  itfelf,    as  the  contra6l  of  the  parties,   and  upon 
the  intention  of  the  parties  appearing  therein  : — for  though  by  the  civil  law, 
there  muft  be  a  lofs  of  property  to  entitle  a  perfon  infured  to  recover  againft 
the  infurer ;   yet  that  is  not  fo  in  our  law,   which  judges  upon  the  contract 
itfelf,   and  the  intention  of  the  parties  appearing  therein  : — he  cited  a  cafe  of 
De  Paiba  and  Ludlozo  (the  preceding  cafe)  as  one  in  point ;  but  faid,  he  had  a 
manufcript  note    of  the    cafe,   and  the  judgment  of  the  court,  by  which  it 
appears  that   the  cafe  is  but  imperfeftly  reported  in  Comyns  : — that  the  court 
were  all  of  opinion  the    plaintiff"  had  afligned  a  breach,    upon  which   he  is 
entitled   to  recover :     for   though  the  lols  in  this  cafe  is  fuch  as  does   not 
entirely  deprive   the  infured  of  the    fhip,   yet  he  has  fuftained  a  lofs  bv  the 
capture  and  detention  of  the  fliip  ;  which  is  within  that  part  of  the  policy  which 
infures  againft  all  captures  and  detentions. — And  to  fhew  that  it  is  not  necef- 
fary  there  fhould  be  an  entire  lofs  to  entitle  the  plaintiff"  to  recover,    he  cited 
the  cafe  of  Bond  and  Gonfales,     2  Salk.  445.   and  another  cafe  in  Salk.  444. — 
Judgment  for  the  plaintiff. — N.  B.  The  infurance  was  intercjt  or  no  intercjt, 
but  no  weight  was  laid  upon  this,    in  giving  the  judgment  of  the  court. — Ditt. 
Tr.  and  Com. — Pond  v.  King.  21  Geo.  2, — This  cafe  is  more  fully  reported   in 
the  following  paragraph. 

9.  Case. — The  plaintiff  being  concerned  in  the  Salamander  privateer,- 
made  infurance  on  her,  at  and  from  the  Downs  or  elfewhere,  to  any  ports  or 
places  whatfoever,  for  and  during  the  fpace  of  three  calendar  months,  to 
commence  from  the  21ft  of  December  1744,  inter ejl  or  no  interefl,  free  of 
average,   and  zoitliout  benefit  of  falvage  to  the  affurcrs : — and  in  cafe  the  faid 

W  (hip 


jS  CAPTURE. 

fliip  fliould  not  be  heard  of  in  twelve  months  after  the  expiration  of  the 
above-mentioned  three  months,  tlie  alfurers  agreed  to  pay  the  lofs,  and  the 
aflUred  to  repay  the  fame,  if  afterwards  the  faid  Ihip  fliall  be  heard  of  in  fafety. 

The  defendant  underwrote  two  different  hundred  pounds,   at  feparate 

times,  on  the  aforefaid  poUcy,  and  the  (hip  proceeded  on  her  voyage  on  the 
14th  of  December,  as  above  mentioned,  and  was  taken  by  the  French  on  the 
2d  of  February  following,  after  an  engagement  of  more  than  an  hour  with  a 
much  fuperior  force,  and  after  feveral  of  her  men  were  killed  and  wounded ; 
and  being  thus  conquered,  117  of  her  men  (including  the  captain  and  all  the 
officers)  moft  of  her  fmall  arms  and  the  commllhons,  were  removed  into  the 
enemy's  fhip,  and  carried  into  France,  leaving  only  17  Englifh  on  board  the 
Salamander  (of  which  live  foon  after  died  of  their  wounds)  and  two  French 
officers,  with  24  of  their  men  ;  and  the  faid  fliip  was  in  poffefTion  of  thefe 
their  adverfaries,  from  four  of  the  clock  in  the  alternoon  of  the  faid  2d  day 
of  February  until  five  of  the  clock  in  the  afternoon  of  the  5th  day  of  the  fame 
month  ;  during  all  which  time  Ihe  was  abfolutely  in  the  power  of  the  enemy, 
and  was  at  the  laft  mentioned  period  retaken  by  the  Hunter  privateer,  captain 
Richard  Veale,  who  put  30  of  his  men  and  two  officers  on  board  her,  and 
kept  her  cruizing  with  him  for  eight  days,  when  the  faid  captain  Veale 
engaged  and  took  a  French  privateer,  with  which,  together  with  his  own  fhip 
and  the  Salamander,  he  endeavoured  to  gain  fome  port  in  England  or  Ireland; 
but  the  wind  and  weather  not  permitting,  he  carried  them  all  to  Lifbon  (a 
neutral  port)  where  he  lay  a  confiderable  time  ;  during  which  captain  Veale 
took  out  of  the  Salamander  two  carriage  guns,  and  thirty  hundred  weight  of 
bread  for  his  fliip's  ufe  ;  and  the  captain  of  the  Durfley  privateer  (being  in 
partnerffiip  with  the  Hunter)  alfo  took  out  two  carriage  guns  for  the  ufe  of  his 
fhip  :  of  all  which  captain  Veale  made  a  manifefto,  and  fent  it  to  his  owners, 

that  they  might  be  accountable  for  them  where  they  ought. Captain  Veale 

inflituted  a  fuit  in  the  vice-admiralty  court  at  Gibraltar,  againfl  the  faid  fliip 
the  Salamander,  &c.  and  on  the  29th  of  April  1745,  obtained  a  decree  from 
the  judge  thereof,  that  the  faid  fliip,  &c.  fhould  be  reftored  to  her  rightful 
owners,  they  paying  in  lieu  ofy?i/'j«jc,  one  third  part  of  the  full,  true,  and 
real  value  thereof,  free  and  clear  from  all  charges  and  deductions  whatfoever ; 
but  as  her  capture  had  entirely  overfet  her  voyage  before  the  expiration  of 
three  months,  for  which  ffie  was  infured,  the  plaintiff"  demanded  the  infurance 
of  the  defendant,  which  being  denied,  he  fued  him  for  the  fame ;  and  on  the 
trial  at  Guildhall,  the  jury  brought  in  i\it  verdict /pecial ;  which  occafioned 
it's  being  argued  before  the  judges  of  the  king's-bench  in  Hil.  Term,  1746; 
and  the  difpute  in  queftion  feemed  to  turn  on  this  point,  \\z.  Whether  a  policy 
made  free  of  average  can  affed  the  infurcr,  but  by  a  total  lofs  ? — This  was 
ftrongly  urged  in  favour  of  the  defendant,  whofe  counfel  fuppofed  that  the 
recapture  prevented  the  total  lofs,  which  would  have  happened,  had  the 
enemy  carried  her  into  France ;  and  that  he  was  freed  by  the  policy  from 
payment  of  the  average,  ordered  to  be  paid  in  lieu  of  falvage  ;  fo  that  confe- 
quendy  the  plaintiff's  demand  on  him  was  ill  founded  and  unjuft; : — but  the 
arguments^  on  the  contrary  fide  being  ftrong  and  conclufive,  I  fliall  tranfcribe 

the 


CAPTURE,  7Q 

the  greateft  part  of  them. And  the  queflions  now  upon  this  fpecial  verdift 

are  two ;  one  to  be  conhdered  upon  the  firft,  the  other  on  the  fecond  count 
in  the  declaration  -.—Jirjl,  whether  the  property  of  the  prize  was  diveRed  by 
the  taking  ?  And,  fecondly,  whether,  as  it  was  found  that  the  voyage  was  totally 
broke,  and  the  purpofe  thereof  defeated  by  the  capture,  and  no  reflitution 
made  to  the  owners,  there  is  not  a  breach  of  the  policy,  fufficient  to  give 
the  plaintiff  a  right  of  aftion,  notxoithjianding  the  recapture  ;  and  though  the 

property  be  not  changed,   and   the   infurance  made  free  of  average  F 

Firjt,  it  is  found  that  the  fhip  was  taken  by  enemies  as  a  prize,  and  that  117 
men  (including  the  captain  and  officers)  with  the  greatcft  part  of  the  finall 
arms,  commilfion,  &c.  were  carried  into  France,  and  only  17  men  were  left  on 
board,  all  of  which,  except  three,  were  wounded,  and  five  of  them  died  foon 
after ;  fo  that  they  were  not  able  to  navigate  the  fhip  :  but  two  French 
officers,  and  24  men  were  put  on  board,  and  the  faid  (hip  fo  conquered 
remained  in  the  poffeffion  of  the  enemy  from  the  2d  to  the  5th  of  February ; 
and  during  all  that  time,  was  abfolutely  in  their  power,  and  that  thereby  the 
voyage  infured  was  totally  prevented. — Thefe  fafts,  according  to  the  laws  of 
France,  Spain,  Holland,  Sweden,  and  other  European  nations,  are  fufficient 
to  divert;  the  property  of  the  prize ;  but  according  to  the  opinion  of  fome 
writers  who  draw  their  notions  from  the  rule  of  the  civil  law,  the  property  of 
a  fhip  taken  at  fea,  is  not  diverted,  till  the  prize  is  brought  "  infra  fines,  or 
infra  praefidia  capientium. " — If  the  queftion  therefore  is  to  be  determined  by 
the  prefent  law  of  nations,  it  is  with  the  plaintiff";  for  thereby  the  property  of 
a  prize  is  changed  by  a  firm  poffeffion  of  "'  24  hours : " — but  if  by  the 
opinion  of  certain  doftors  of  the  civil  law,  it  is  againft  the  plaintiff",  the  prize 
not  being  brought  "  infra  fines  hoftium." — It  feems  to  be  agreed  by  all  the 
contending  writers  upon  this  quertion,  that  the  "'  legal  principle  which  verts 
the  property  of  a  prize,  is  fuch  a  taking  as  enables  the  captor  to  retain  and 
defend  the  poffeffion  ; "  but  their  difpute  is  concerning  what  circumftance  is 
declarative  of  fuch  ability  :  and  upon  this  head  it  is  that  a  variety  of  difficulties 
have  arifen. — Van  Bynkerfioek,  fpeaking  to  this,  fays,  "  Ouando  autem  ita 
adepti,  videamur  poffeffionem  ut  retinere  vel  non  retinere  poffimus,  caufarum 
varietas  definire  non  permittit. " — They  all  agree,  that  when  the  "  fpes 
probabilis  recuperandi "  is  loft,  or  the  parties  may  be  faid  "  depofuilfe  animum 
recuperandi, "  the  property  becomes  the  captor's  : — but  they  cannot  fettle 
what  ffiall  be  evidence  thereof,  though  they  confefs  it  would  be  beneficial  to 
the  public,  and  reafonable  in  itfelf,  to  put  an  end  to  an  infinity  of  litigation, 
by  reducing  the  queftion  to  a  certainty  ;  yet,  notwithftanding  fo  neceflary  an 
end  is  fully  agreed  upon,  the  means  leading  to  it  are  not.  The  doftors, 
adhering  zealoufly  to  the  rules  of  the  civil  law,  contend  that  the  criterion  for 
determining  the  queftion  ffiall  be,  a  bringing  the  prize  "  infra  pra^fidia ;  '  the 
law  of  nations  regarding  rather  the  general  intereft  and  convenience  of  the 
fubjefts,  and  to  give  all  poffible  encouragement  in  the  time  of  war  for  the 
retaking  of  prizes  from  the  enemy,  hath  ordained  that  a   "  poffeffion  of  24 

hours  '  ffiall  be  fufficient. And  now  it  is  for  the  judgment  of  the  court,  to 

vhich   fide  they  will  pay  tlie  deference ;  that  is,  whether  to  die  opinion  of 

fuch 


8o  CAPTURE. 

fuch  doftors  as  Albericus  Gentilis,  Petrinus  Bellas,  and  Van  Bynkerfhoek, 
or  to  the  law  and  conilant  practice  ufed  in  other  nations. — If  they  adhere  to 
the  doftors,  the  queftion  is  not  finally  fettled  amongll  them ;  for  fome 
contend,  that  there  mufl  be  a  bringing  "  infra  fines  capientium  ;  "  others  only 
"  infra  clafTeni, "  and  fome  into  a  neutral  port,  &c.  ;  and  fome  go  fo  far  as 
to  fay,  that  after  a  bringing  "  infra  prasfidia, "  there  mult  be  a  failing  to  a  new 
deftination. — But,  by  the  law  of  nations  of  modern  or  later  inllitution,  the 
certainty  fought  for  is  definitive,  viz.  a  poffeffion  of  24  hours  ;  and  the 
authorities  to  prove  the  law  of  nations  on  this  queftion  are,  i.  "  Recentiori 
jure  gentium  inter  Europoeos  populos  introdu61um  videmus,  ut  talia  capta 
cenfeantur,  ubi  per  horas  viginti  quatuor  in  poteftate  hoftium  fuerint/'  Grotius 
lib.  3.  c.  6.  f.  4. — 2.  "  La  coutume  vient  des  ancicnnes  loix  d' Allemagne,  & 
elle  a  etablie  limitation  de  1' efpece  de  24  heurcs  qu' elles  limitiioient  non 
fans  raifon : "  Barb.  Notes  on  Grotius,  1.  3.  c.  6. — 3.  "  La  meme  chofe  fe 
pratique  en  Angleterre,  et  dans  le  royaume  de  Caflillc  :  "  Idem. — 4.  "  Sed 
hodie  naves  ab  hofte  captae  communi  inter  Chriftianos  et  Europccos  populos, 
five  jure,  five  confuetudine  poftliminio — non  recipiuntur  fi  hoftis  cas  non 
eodum  die  navali  pugna  iterum  amiferit,  fed  per  viginti  quatuor  horas  in 
poteftate  viftoris  fuerint ;  tunc  enim  vere  captse,  et  proprii  juris  faftae  cen- 
fentur. "  Locin.  de  Jure  Maritimo,  &c.  1.  2.  c.  4.  f.  14. — Zouch,  de  Jure 
Feciali,  part  2.  f.  8,  21. — 5.  "  Ouicquid  vero  clariftimi  interpretes  difputent 
de  pra^da  prius  in  preefidia  deducenda  quam  fiat  poftidentis,  aliud  tamen 
confuetudine  &  moribus  Europceorum  hodie  obfervatur,  ut  nimirum  pneda 
capientium  fiat,  &  praefertim  naves  hoftium,  de  quibus  hie  fermo  eft,  fi  a 
viclore  per  diem  &  noftem  pofteffae  fuerint. "  Loc.  1.  2.  c.  4.  f.  8. — 6.  "  Si 
aucun  navire  de  nos  fujets  eft  repris  fur  nos  ennemis,  apres  qu' il  aura  demeure 
entre  leur  mains  pendant  24  heures,  la  prife  en  fera  bonne  ;  &  fi  elle  eft 
faite  avant  les  24  heures,  il  fera  reftitue  au  proprietaire."  Ordon.  touchant 
la  Marine,  Tit.  Piifes,  art,  8. — 7.  Simon  Greenewegen,  an  author  frequently 
quoted  by  the  beft  writers,  and  "  who  was  a  celebrated  lawyer  in  the  lafl: 
"  century,  and  of  a  family  that  had  for  a  long  courfe  of  years  fat  at  the  helm 
"  of  government,  proves,  that  the  law  requiring  a  fliip  to  be  brought  infra 
"  pra^fidia  is  abrogated,  and  puts  it  down  as  fuch  in  his  treatife  Dc  Legibus 
"  abrogatis  et  inujitatis  in  Hollandia,  vicinifque  regionibus  ;  where  he  diftin- 
"  guilhes  what  fliall  be  faid  to  be  prize  by  the  civil  law,  and  what  by  the 
"  law  of  nations  ;  to  which  end,  in  lib.  49.  tit.  15,  de  captivis,  &c.  he  makes 
"  feveral  divifions  and  fubdivifions  of  the  fubjeft,  and  has  two  fubdivifions, 
"  de  navibus,  viz.  captae,  quae  dicuntur  jure  civili ;  fecondly,  gentium,  and 
"  under  this  head,  gentium,  quotes  the  palfage  aforefaid  from  Grotius  ;  and 
•'  adds,  that  now  in  Holland  a  prize  may  be  good,  "  nullo  habito  refpetlu 
"  temporis  quo  navis  in  hoftium  poteftate  fucrit,  dam  tamen  infra  praefidia 

*•  perdu6la  non  fuit." — Sim.  Green,  de  leg.  ab.  p.  353. As  by  the  law  of 

other  nations  a  poiTefiion  of  24  hours  undoubtedly  divefts  the  property  of  a 
prize,  one  might  conclude,  that  as  this  queftion  has  not  been  judicially 
determined  by  this  court,  it  would  be  reafonable  to  put  the  fubjefts  of  England 
upon  the  fame  footing  with  thofe  of  France,  Spain,  Holland,  Sweden,  &c. 

efpecially 


CAPTURE.  81 

efpecially  in  mercantile  contrafts,  which  ought  to  have  the  fame  conflruction 
in  one  trading  country  as  another;  and  more  efpecially  as  this  kind  of  infu- 

.  ranee,  interejl  or  no  intereji.,  is  a  branch  of  trade  peculiar  to  us :  but  if  this 
will  not  do,  the  queftion  upon  the  fecond  count  is  to  be  confidercd,  which  is, 
— Whether,  upon  this  count,  there  hath  not  been  a  breach  of  the  policy  or 
contraft  of  infurance,  fufficient  to  give  the  plaintiff  a  right  of  a6lion  upon 
intereft  or  not  ? — It  is  found,  that  the  prize  was  fitted  out  to  cruize  againd 
the  king's  enemies  ;  that  all  her  men,  except  feventeen  as  aforefaid,  were  taken 
and  carried  into  France,  and  thofe  left  not  able  to  navigate  the  fiiip  ;  that  the 
voyage  defcribed  in  the  policy  was  thereby  totally  prevented  ;  and  at  the 
time  of  the  verdicl  the  fliip  remained  at  Lifbon,  not  reftored  to  the  owners. — 
This  feems  to  be  a  breach,  taking  the  policy  either  upon  the  foot  of  a  contraB 
or  wager  : — confidering  it  as  a  contraft,  the  agreement  is,  that  the  fhip  flialt 
not  be  prevented  in  her  voyage  by  any  of  the  perils  or  rifques  in  the  policy, 
amongft  which  are  all  furprifals  at  fea,  arrefts,  reftraints,  and  detainments  of 
all  kings,  princes,  and  people  whatfoever ;  and  here  has  been  a  furprifal  at 
fea,  and  a  detention,  whereby  the  whole  voyage  infured  was  totally  broke,  as 
is  found  by  the  verdift  :  and  this  is  a  much  flronger  cafe  than  De  Paiba  and 
Ludloxo,  where  the  court  for  very  good  reafons  determined  unanimoufly  for 
the  plaintiff,  as  appears  by  the  judgment  of  Lord  C.  J.  King,  delivered  as  the 
opinion  of  the  whole  court ;  whereby  it  alfo  appears,  that  a  total  lofs  is  not 
neceffary  in  all   cafes  to   give  the  plaintiff  a  right  of  action  upon  a  policy, 

interejl  or  not. The  defendant's  counfel  infifled  in  his  argument,  that  as 

the  policy  was  made  /r^^  of  average,  nothing  could  affeft  the  infurer  but  a 
total  lofs,  becaufe  all  other  loffes  are  included  within  the  import  of  average 
by  the  words  of  the  contraft. — This  is  a  miflake,  and  appears  to  be  fo  from 
the  words  of  the  policy,  which  immediately  follow,  viz.  and  without  benefit  of 

falvage  to  the  infurer.  If  nothing  but  a  lofs  of  the  whole  could  affeft  the 
infurer,  it  is  not  confiflent  that  he  fhould  renounce  the  benefit  of  falvage  ; 
for  what  could  he  have  to  do  with  falvage,  in  cafe  he  was  chargeable  if  any 
thing  was  faved? — This  therefore  is  a  conftruftion  not  warrantable,  being 
abfolutely  inconfiflent  with  the  exprefs  words  of  the  policy,  which  are,  "  free 
of  average,  and  without  benefit  of  falvage  to  the  affurer. " — And  as  fuch  a 
conflruftion  is  inconfiflent,  another  is  to  be  fought  which  is  not  fo  repugnant, 
and  which  may  permit  the  words  before  mentioned  to  ftand  with  more 
propriety ;  and  this  may  be  done  by  confining  the  import  of  average  to  a 
limitation:  and  the  definition  of  ^f<?r^^^  in  the  firfl  article  of  the  ordinance 
of  Fontainbleau,  touchant  la  marine,  titre  avaries,  eflablifhes  fuch  a  limitation 
of  the  import  of  this  word,  as  will  give  it  a  confiflent  place,  as  it  flands  in  a 
policy  of  infurance.' — It  is  by  the  faid  ordinance  defined  thus :  "  Toute 
depenfe  extraordinaire  qui  fe  fera  pour  les  navires  &  marchandifes,  conjoin- 
tement  ou  feparement,  &  tout  dommage  qui  leur  arrivera  depuis  leur  charge 
&  depart  jufques  a  leur  retour  &  decharge,  feront  reputes  avaries." — 
Or  don.  of  1681.  tit.  7.  des  Avaries. — And  it  is  certain  the  true  import  of  the 
word  average,  is,  fuch  damages  as  happen  to  the  fhip  or  cargo  during  the 
voyage,  as  the  lofs  of  anchors,  mafls,  cables,,  &c.  but  that  which  breaks  up 

X  '.  the 


82  CAPTURE. 

the  voyage,  as  in  this  cafe  a  capture  by  enemies,  whereby  the  whole  end, 
purpofe,  and  defign  of  the  cruize  was  abfolutely  defeated  by  the  aflual  taking 
of  all  the  men,  arms,  provifions,  commidion,  officers,  &c.  cannot  from  the 
obvious  nature,  circumftances,  and  rcafon  of  the  thing,  and  the  authority  of 
the  cafe  of  De  Paiba  and  Ludloxv,  be  efleemed  barely  as  an  average,  to  which 
the  infurer  is  not  liable ;  but  mull  be  confidered  as  a  total  breach  of  the 
contraft  of  infurance,  to  which  he  is  liable. — If  the  conRruftion  contended 
for  by  the  defendant  was  to  prevail,  the  infurer  would  rather  be  indemnified 
from,  than  fubjeftcd  to,  the  perils  infured  againfl ;  for,  if  a  taking  happens  at 
the  beginning  of  a  voyage  infured  from  one  port  to  another,  or  for  a  time 
only,  and  the  voyage  be  thereby  broke  up,  or  the  time  elapfed,  the  recovery 
of  the  (liip  will  ruin  the  infured,  and  be  a  general  releafe  to  the  infurer,  who 
will  alfo  be  thereby  indemnified  from  all  the  rifques  in  the  policy  ;  whereas, 
if  no  fuch  capture  had  happened,  the  fhip  might  have  been  lofl; ;  and  a  capture 
and  detention,  breaking  up  the  voyage  infured,  might  put  the  infurer  in  a 
better  condition  than  if  there  had  been  no  capture  at  all ;  which  cannot  be 
the  meaning  of  the  parties,  being  inconfiflent  with  the  apparent  defign  of  an 

infurance. Behdes,  in  this  cafe,  the  (hip   infured  is  not  to  this  hour,  as 

appears  by  the  verdicl,  reflored  to  the  owners ;  neither  is  it  worth  their  while 
to  pay  falvage  and  charges,  and  raife  men  to  bring  her  home  ;  and  fuppofe 
they  had,  and  fhe  had  been  taken  again  by  the  enemy,  the  time  of  infurance 
w^as  expired,  and  the  infurer  in  fuch  cafe  would  have  faid  he  was  not  liable. 
Therefore  the  lofs  in  queftion  muft.  be  conhdered  as  a  total  breach  of  the 
policy,  and  not  as  a  bare  average  : — -firjl,  here  was  a  taking  and  a  detention  : 
— fecondly,  all  the  men,  commiffion,  &c.  taken  and  carried  into  France,  and 
never  retaken  : — thirdly,  though  the  fhip  was  retaken,  yet  fhe  was  not  reflored, 
and  poffibly  never  may  : — fourthly,  if  reflored,  her  men,  arms,  provifions,  &c. 
being  taken,  could  not  purfue  the  purpofe  of  the  voyage  ;  and  therefore  the 
infured  may  abandon  the  benefit  of  falvage  '.—fifthly,  the  verdi6l  has  found 

the  voyage  was  thereby  totally  defeated ;    and  that   is  fufficient. There 

are  many  cafes  where  the  plaintiff  on  a  policy,  inter  efl  or  no  inter  eft,  has 
recovered,  though  no  total  lofs  of  the  fiiip ;  but  becaufe  by  the  perils  in  the 
policy,  fhe  was  rendered  unable  to  perform  the  voyage  ;  as  in  the  cafe  of  the 
Ludlow-Caflle  ;  and  the  cafe  of  the  Providence,  between  Carter  and  Barrel, 
where  the  fhip  came  into  St.  Ives,  bound  for  London,  but  being  leaky,  the 
cargo  was  unloaded,  and  the  fliip  fold  at  St.  Ives  ;  though  it  was  proved  fhe 
might  at  a  confiderable  expence  have  been  made  fit  to  perform  the  voyage, 
yet,  as  without  it  the  voyage  could  not  be  performed,  the  plaintiff  recovered, 
though  no  lofs  at  all  of  the  fhip : — fo  in  the  prefent  cafe,  if  the  fliip  had 
been  retaken  in  an  hour,  fhe  could  not  have  purfued  the  voyage  ;  for  all  the 
men,  &c.  were  taken  and  carried  into  France,   and  therefore  fhe  could  not 

navigate  herfelf,  neidier  could  fhe  have  performed  the  voyage  infured. 

But  taking  it  upon  the  footing  of  a  Wfif^^fr,  as  put  by  the  defendants  counfel, 
what  is  the  wager?  It  is,  that  fuch  a  fliip,  for,  and  notwithflanding  any 
arrefls,  reflraints,  &c.  will  fail  from  London  to  Jamaica,  or  fail  for  three 
calendar  months  upon  a  cruize  (as  the  adventure  may  be).     If  therefore  by 

any 


CAPTURE.  83 

any  arrefl:,  taking,  detention,  &c.  the  fhip  is  totally  prevented  from  proceed- 
ing in  the   voyage,  is  not  the  wager  loft? — has    not   g.  contingency    infured 

againft  happened  ? Upon  this   cafe,   for  the  reafons  aforefaid,  and  many 

others  arihng  from  the  nature  of  the  contraft  of  affurance,  and  particularly 
upon  the  authority  and  reafon  in  De  Paiba  and  Ludlow,  the  plaintiff  hoped  for 
the  judgment  of  the  court  in  his  favour,  M'hich  was  accordingly  given  ;  and 
the  judges  were  unanimous  in  their  opinion. — Lex  Merc.  red.  272. — Pond 
and  King.  21  Geo.  2. — See  alfo  1  Wiljbn  igi. 

10.  Case.  The  Broomfield  was  infured,  at  and  from  the  Leeward -Iflands 
to  Briflol,  interejl  or  no  inter  cjl,free  of  average  lofs,  and  xvithout  benefit  offalvage  ; 
and,  among  other  underwriters,  the  defendant  fubfcribed. — The  fliip  in  her 
pallage  home  was  taken  by  a  Spaniard,  who  took  out  four  of  her  men  and 
the  captain,  and  put  nine  of  his  men  aboard,  and  ordered  them  to  carry  her 
to  Bilboa,  for  which  place  her  courfe  was  direfted  ;  and  on  her  voyage  there, 
and  after  having  been  in  poflefiion  of  the  enemy  thirty-nine  hours,  (lie  was 
retaken  by  the  Terrible  privateer  belonging  to  Liverpool,  and  carried  into 
Waterford;  from  whence  fome  propofals  were  made  to  the  owners  of  the  Terri- 
ble, in  order  to  her  releafe,  and  permiflion  to  profecute  her  intended  voyage 
to  Briflol ;  but  not  being  agreed  tp,  flie  was  brought  to  Liverpool,  and  after 
a  commifiTion  of  appraifement  had  iflued  out  of  the  admiralty,  fhe  and  her  cargo 

were  fold  to  pay  the  falvage  due  to  the  recaptors,  as  by  aft  of  parliament. 

One  of  her  former  owners  now  bought  the  whole,  and  afterwards  parcelled  her 
out  among  feveral  gentlemen  at  Briftol  (who  became  co-partners  with  him)  to 
which  place  fhe  was  ordered,  and  where  flie  arrived  ;  though,  as  the  plaintiff 
fuppofes,  this  could  not  be  an  arrival  agreeable  to,  or  within  the  intent  and 
meaning  of  the  policy  in  queftion,  under  the  circumftances  above  ftated,  viz. 
of  her  capture,  recapture,  appraifement  and  fale,  and  with  an  entire  new  fet  of 

owners,   he  thinks  he  is  entitled  to  a  total  lofs. The  defendant,  on  the 

contrary,  urges  that  this  was  no  more  than  a  bare  capture  and  recapture,  which 
he  fays  has  never  been  deemed  a  total  lofs ;  in  reply  to  which  the  plaintiff 
affirms,  that  this  was  ftill  more,  for  the  fiiip  after  being  retaken,  was  carried  into 
Waterford  by  the  privateer,  kept  fome  confiderable  time  there,  afterwards  was 
carried  into  Liverpool,  and  there  (as  before  mentioned)  with  the  cargo,  ap- 
praifed  and  fold  to  pay  the  falvage,  and  a  new  fet  of  owners  engaged  before  fhe 

fet  out  for  Briftol,  by  which  the  whole  voyage  was  altered  and  loft. And 

to  juftify  this  plea,  he  quoted  Lord  C.  J.  Lee's  fentiments,  when  he  gave 
judgment  in  the  cafe  of  the  Salamander,  viz.  "  We  muft  not  judge  this  caufe 
"  by  the  rules  of  the  civil  law,  but  we  muft  judge  it  by  the  rules  of  the  com- 
''  mon  law,  and  determine  on  this  policy  as  an  agreement  and  contraft 
'■  between  the  parties,  whofe  intention  and  meaning,  when  they  enter  into  it 
'■'  muft  govern  ;  and  although  in  the  civil  law,  to  make  a  forfeiture  of  an 
"  infurance,  there  muft  be  a  total  lofs  of  property,  that  is  not  a  reafon  why  it 
"  fhould  be  required  in  this  cafe  ;  becaufe  here  the  policy,  by  the  words  of 
"  it,  extends  to  accident,  where  there  may  be  no  lofs  of  property,  as  taking 
"  by  pirates,  enemies,   men  of  war,  &c. — And  this  (his    lordfliip  declared) 


84  CAPTURE. 

«'  \\-as  taken  notice  of  by  Lord  King,  in  the  cafe  oi  Dc  Paiba  and  Ludloxo,  where 
"  there  ^\•a.s  no  alteration  of  the  property  by  that  capture,  as  Sweden  was  not 
'-  at  war  witli  England,  and  vet  that  was  deemed  a  total  lofs  ;  but  in  the 
"  prefent  cafe,  here  was  a  capture  by  an  enemy ;  and  his  lordfliip  farther 
"  faid,  that  the  queflion  on  the  Salamander  was,  not  whether  the  properly  of 
'•  the  privateer  was  lofl  by  this  capture  ;  but  whether  the  capture  was  fuch  a 
"  peril,  as  is  infured  againfl:  ?  The  judges  were  unanimoufly  of  that  opinion, 
"  and  judgment  was  gi\'en  for  the  plaintiff." — Verdift  for  the  defendant. — Lex 
Merc.  red.  280.  at  Guildhall  after  Mich.  1750. — Daubony  v.  Read. 

11.  If  any  fhip  or  fliips  of  the  fubje6ls  or  inhabitants  of  eidier  na- 
tion, or  of  a  neuter,  be  taken  by  a  third  party  in  the  harbours  of  either, 
not  being  of  the  fubjecls  or  inhabitants  of  either  nation  ;  they,  in  or  out  of 
whofe  haven  or  jurifdiftion  the  fliid  fhips  fiiall  be  taken,  fhall  be  bound  to 
endeavour  with  the  other  party,  that  the  faid  fliip  or  fliips  be  purfued,  brought 
back,  and  reftored  to  the  owners  ;  but  all  this  fhall  be  done  at  the  charges  of 
the  owners,  or  whom  it  concerns. — Treaty  with  Holl.  1667. 

12.  Neither  of  the  confederates  (hall  fuffer  the  fhips  or  goods  of  the 
other,  or  of  the  people  of  either,  which  fhall  at  any  time  be  taken  by  the 
enemies  or  rebels  of  the  one,  and  carried  into  any  ports  or  places  belonging 
to  the  dominions  of  the  other,  to  be  conveyed  away  from  the  owners  or  pro- 
prietors ;  but  the  fame  fhall  be  reflored  to  them  or  their  attorneys ;  provided 
they  lay  claim  to  fuch  fliips  and  goods  before  they  are  fold  or  cleared,  and 
either  -prove  their  right,  or  exhibit  teflimonies  of  their  property  in  them, 
within  three  months  after  the  faid  fliips  and  goods  fliall  have  been  fo  carried 
\n  ;  and  in  the  mean  time  the  proprietors  fhall  pay  and  difcharge  the  neceffary 
expences  for  the  prefervation  and  cuflody  of  the  faid  fhip  and  goods. — 
Treaty  widi  Portug.  1654. 

13.  Neither  of  tliefe  confederates  fhall  fuffer  the  fliips,  veffels,  goods 
and  merchandife  of  the  other,  or  of  his  people  or  fubjefts,  which  are 
taken  at  fea  or  elfewhere,  by  enemies  or  rebels,  to  be  brought  into  his  ports 
and  dominions,  but  fliall  publickly  forbid  any  thing  of  that  kind  to  be  done. 
And  if  any  fhips,  veffels,  goods  and  merchandife  of  either,  or  his  people 
or  fubjefts  taken  at  fea,  or  elfewhere,  fhall  be  carried  into  the  ports  or 
countries  of  the  other,  by  an  enemy  or  rebel  of  the  confederates,  or  either 
of  them,  fuch  confederate  fliall  not  fuffer  the  fame  or  ai;iy  part  thereof  to  be 
fold  in  that  port,  or  any  other  place  in  their  dominion ;  but  fhall  take  care 
that  the  mafter  of  the  fhip  or  veffel  fo  taken,  as  alfo  of  the  mariners  and 
paffengers,  fhall,  as  foon  as  they  arrive,  be  immediately  fet  at  liberty, 
together  with  as  many  of  the  prifoners,  fubjefts  of  either  kingdom,  as  fhall  be 
brought  thither  ;  nor  fhall  he  permit  the  faid  fhip  and  veffel  to  flay  in  that 
harbour,  but  fhall  command  the  faid  fliip,  with  her  goods,  merchandife  and 
lading,  immediately  to  leave  the  port.  Provided  neverthelefs,  that  nothing 
in  this  article  be  turned  to  the  prejudice  of  the  alliances   formerly  entered 

into 


CASES        ADJUDGED. 


85 


into  by  either  of  the  confederates  with  other  nations  ;  and  where  thefe  things 
do  not  interfere,  the  above  article  fiiall  remain  in  full  force. — Treaty  zoiLli 
Szoeden,  1661. 

14.  Sz-£.  Prelim.  Di/c. 'jg.  Abandonment,  Accident,  Admiralty  and  Admi- 
ralty-Court, Average,  Claim,  Colony,  CommiJJion  of  Marque,  Concealment,  Con- 
demnation, Confifcalion,  Contraband,  Cruife,  Detention,  Freedom  of  Navigation, 
Hojlility,  Inter  ejl  orno  Inter  ejl.  Law  of  Nations ,  Mafqued  Ship  or  Property, 
Neutral  Ship  or  Property,  Pirate,  Privateer,  Prize,  Ranfom,  Recapture, 
Seizure,  Total  Lofs,  Treaty,  War,  Warranty. 


CASES         ADJUDGED. 

1.  TN  the  Preliminary  Difcourfe,  p.  68.  feft.  15.  of  the  plan  of  the  prefent 
•*•  work,  a  particular  account  is  given  of  the  manner  in  which  this  very 
material  part  of  it  is  executed  ;  and  of  it's  great  utility  in  facilitating  to  all 
perfons  the  immediate  knowledge  how  the  law  Hands,  with  refpeft  to  each 
diftinft  quellion,  matter,  or  point,  which  hath  been  tried  and  decided  in  our 

courts  concerning  infurance. The  whole  of  each  cafe  is  inferted  under  the 

head  or  title  to  which  it  isfirjl  referred  in  the  following  table,  as  the  principal 
fubjeft  matter  ;  fo  as  to  render  it  unneceflary,  as  well  for  the  gentlemen  of  the 
law  as  others,  to  confult  the  original  reporters : — and  where  (behdes  the 
principal  point)  fome  other  propofition,  or  point  of  law  hath  been  determined, 
in  the  report  of  any  cafe,  fuch  propofition  or  point  is  extrafted  from  it,  and 
placed  under  it's  proper  head  or  title,  which  is  referred  to  in  the  parenthefs, 

as  below. Not  only  all  the  cafes  of  infurance  which  are  to  be  found  in  the 

reports,  and  other  law  books  ;  but  alfo  feveral  others  of  much  importance,  and 
lately  adjudged,  which  were  never  before  printed,  arc  comprifed  in  this  work, 

having  been  faithfully  and  accicrately  taken  for  that  purpofe  at  the  trials. ■ 

Amongft  the  cafes  hereunder  named,  there  are  a  few  which,  although  they  do 
not  immediately  turn  upon  matters  of  infurance,  yet  are   fo  intimately  con- 

nefted  therewith    as  to    make    it   highly  requifite    to    introduce    them. 

Authorities,  thus  regularly  digefted  and  arranged,  are  eafily  reviewed,  and  a 
clear  concluhon  drawn  from  the  evidence  and  reafoning  they  afford. 

2.     A  J  ABLE  of  the  adjudged  ccifes  contained  in  this  work. 


Names  of  the  cafrs. 

Amies  v.  Stevens 


Anonymous 


Titles  under  which  each  cafe 
is  inl'erted  and  quoted. 

-  Lighter. 
End  of  Voyage  i3c. 
Evidence,     Majler, 
Neutr.  Ship&c.  Mew 
Trial,  Pafs,  Wages. 
Arnold  v.  Godin     -  -  InJuJ]ictency. 
AsHwiN  V.  CoRBiLL  -  -  Trial. 
AssiEVEDo    V.     Cam- 
bridge     


Capture. 


Names  of  the  cafes.  Titles  under  which  cach'cafe 

is  inferted  and  quoted. 

Ass.  of  Davis  v.  Brown  -  Lives. 
Barclay  v.  Collier  -  -  Privateer. 

Barclay  v.  Ethering-  )  „     r 

>  Kan/om. 

TON    -    - -    -  ) 

Bates  v.  Graham  ct  al.  -  Mi/lake. 

Bayley  7/.  Grant    -  -  -Wages. 

Bendir  v.  Oyle    -  -  -   -  Court  of  Policies. 

Bliedstyn      v.      Sedc-),,   -1 

>  Evidence. 

WICK ) 

BOEHM 


86  CASES        A 

Names  of  ihe  cafes.  Titles  under  which  each  rafc 

is  infcrtcdand  quoted. 

Bo  EH  M  I/.  Snow   -  -  -  -  Mafqued  Ship  &c. 
-,  ^  { Convoy    (alio  Cap- 

BOND  U.  GONSALES        -    <  „r  rr  n 

ilure,Ujage,Vcyage). 
Bosom  v.  S.vndforo  -  -  Majier. 

BOUTFLOWER    V.\VlL.}p^.^^^^^ 
MER      --------) 

„  i  Corn  (a.Ko  Average, 

BOYFIELD   V.  bKOWN    -    -J  ,  ^ 

I  Peafe). 

Brown  v.  Benn  &  al.   -  NewJouJidhnd. 

C.\Li.AWAY  V.  Ward    -  Mijlake. 

Came  ».  Move     -  -   -  -  Court  of  Policies. 

Campbellx^.Bourdieu  -Convoy. 

Cantillon    v.    Lond.D  Corn  (alfo    Policy, 

Ass.  Co.    - S  Stranded). 

Caps  v.  Tooker J^tfo'"- 

Carter  v.  Barrel     -  -  Capture. 

_,  „  (.Concealment      falfo 

Carter  v.  Boehm   -  -  \  ^ 

( Intelligence). 

Carter    v.    Roy.   Ex.")  Deviation         (alfo 

Ass.  Co. S  Voyage). 

Cary  v.  King  - Salvage. 

Chandler  v.  Meade  -Wages. 

Child     Sir     Jos.     v.^  Embargo  [3M0  Sal- 

Sands -  S'vage). 

Chitty  t).  Se  lwi  n  Sc al.  -  Voyage. 
Clay  •y.  Sudgrove  -  -Wages. 
Cleeve     v.    Sir     CK.~i  Lives  {z\{o  Intercjl 

Gascoicne  -  -  -  -  -Sof  Money), 

Cock  v.  Town  son Deviation. 

CoGGs  V.  Bernard Majler. 

Cossart  v.  Lawdsley  -  Hypothecation. 

Curling  v.  Bran d Proof. 

Da  Costa  v.  Firth  -  -Salvage. 

Da  Costa  v.  Jones   -  -  Wager. 

Da  Costa  v.  Pauciion  -  Fraud. 

Da  Costa  v.  ^ck'hh^-^ Concealment      (alfo 

RET     -------  .\  Return). 

Dale  t/.  Hall    -    -    -   -Negligence. 

Dandy  z/.  Turner    -   -Bottomry. 

Dartmouth's  Case  -   -Bottomry. 

Daoecxy  v.  Read  -  -  -  Capture. 

-.  T^  c  Intcrcfl  or  no  Inter, 

Dean  v.  Dicker  -  -    -  )      . 

I  (alfo  Damage). 

De   GhETTOFF     &  al.  V.}  ^      n  c^  -r      n 

(  Trujl  &  Trujlce. 
Lond.  Ass.  Co.    -  -) 

Deguilder  t/,  Depeis-)  n  ,, 

V  Bottomry. 
ter- ) 

Delbie  v.  Proudfoot  -  Court  of  Policies, 

De  Paiba  v.  Ludlow  -  Capture. 


D    J    U    D     G    E    D. 


Names  of  the  cafes. 

Dexey'sSir  Wool. Case 
Dick  v.  Barrel  -   -   - 
D'Olipiiant  II.  So.  Sea 

COMP.  -------- 

Dowdale's  Case  -   -  - 
Drinkwater  v.  Lond 

Ass.  Co.     ------ 

E.  Ln  D.  Co.  I'.    PULLEN  - 

Eguino  v.  Hodgson  -  - 

Elton  v.  Brogden   -  - 

Fell  v.  Lutvvidge  -   - 
FiREBRAss  V.  Perkins 

Fitzgerald  v,  Pole    - 

Fitzgerald  v.  Wain 
HOUSE  ------- 

Foster  v.  Wilmer  -  - 

Fowlk  v.  Pinsacho  - 
Fox  v.  Black  -  -  -  - 
French  v.  Backhouse 
French  v.  Foulston  - 
Fry  v.  Porter  -  -  -  - 
Game  v.  Hervey  -  -  - 

Gardiner  v.  Coleman 

Gardiner  v. Crosdale 
Glover  t;.  Black  -  — 
GoDDARTt;.  Garrett  - 
Godin    &   al.  V.  Lond. 
Ass.  Co.  ------- 

GoFF  V.  Clinkard  -  - 
Gordon  v.  Mori.ey  -  - 


Titles  un-Jer  which  each  cafe 
is  infertcd  and  quoted. 

-  Time. 

-  Ship  or  Ships. 

i  Mijlake, 

■  Court   of  Policies. 

I  Fire. 


-  Lighter. 

'Salvage  (alfo  Total 
iLof). 

( Deviation       (alfo 

(Barratry). 

.  TruJl. 

-  Fraud. 

■Privateer  (alfo 
I  Barratry ,  Capture, 
I  Recapture,  Sal- 
.vage,  Ufage). 

\  Privateer. 


(alfo 


Goss  V.  Withers  -  -  - 

GOURDAN  MoNS.CaSE 

Grant  Sir  A.  t;.  Inn Es 
Green  v.  Bowden  --  • 
Green  v.  Brown  -  -  -  • 


Green  v.  Butler 


Green  v.  Young--  -  -  ■ 
Hambleton  v.  Veere 


C  Deviation 
\  Voyage). 

-  Premium. 

-  Deviation. 

-  Order. 

-  Order. 

-  Precedent. 

'  Intendment, 

(  FaHor  (alfo  Double 

ilnfurance). 

-  Damage. 

-  Rejpondentia. 

-  Bottofnry. 

-)  Double  Infur.  (alfo 
^  Factor,  Refponden). 

-  Negligence. 

-  Convoy. 

Abandonment  (alfo 

Capture,     Piracy, 

Policy,  Recapture, 

Salvage,  Total  Lofs). 

-  Blank. 

-  Interef}. 

-  Concealment. 

-  Warranty. 

(  Concealment   (alfo 
(  Broker). 

-  Embargo. 

-  Damage. 

Hamelton 


CASES        A 

Names  of  the  cafes.  Titles  under  which  each  cafe 

is  infeitcd  and  quoted. 

(  Recapture  (alfo  Sal- 
Hamelton  v.  Mz^DEs,<vage,  TotalLofs,Va- 

Qluaiion,  VerdiB). 

Hamilton  t;.  Davis   -  -  Wreck. 

Hanburyv.  King -Privateer. 

Harman  f.VANHATTON  Bottcviry. 

Herrezuelo  &  MoR-  )  r.  7 

\  Salvage. 

PHY   V.  ) 

Hartford  v.  Jones  -  -  Salvage. 

Heaton  ^z.  RucKER   -  -  Eajl' India  Ships. 

Henkle  v.  R.  E.  A.  Co.  -  Mijlake  (alfoWar). 

Hernaman  f.BowDEN  -Wages. 

Hewit  v.  Flexney Ranfom. 

Hill  &  al.  v.  Spencer  -  Mafqued  Ship  ^c. 

Hodgson  f.  Richard- )  ^         ,       , 

S-  Loncealment, 

SON ) 

Hog  v.  Gould NEY Adjujlmcnt. 

Hogg    &al.  t/.   Bogle  ^Commencement      of 
&al.  --------)  Voyage  or  Rijque. 

Hope  t^.  Winter  -  -  -  -  Ranfom. 

Horn  v.  Smith Barralry. 

HoRNE  v.  Lewin Wages. 

HoUBLAND     v.   HarRI-    )   r)      7  7/1/^      J 

V  Prohibited  Goods. 

SON --■) 

Howard  Sir  R.  Case  -  Lives. 
Hughes  ly.  Cornelius  -  Condemnation. 

HussEY  v.  Hewit Fraud. 

Jackson  v.Colegrave  -  Premium. 

Jalabert  v.  Collier  -  Cruife. 

,  -,  ^  Convoy  falfo  Con- 

Tefferiesz/.Legandra  ^  .   ^ 

IJlniclion,  Policy). 

jENKINSf.MACKENZIE  -  Cruijc. 

John  son  v.Desm  i  n  e  ere  Cowri  of  Policies. 

Johnson  v-  Shippen  -  -  Hypothecation. 

Johnston  &  Canning  )  P7-e/?»z.  Dijc.  79. 

i^.  Weskett  -  -  -  -){dMoConcealment). 

Joy  rj.  Kent -  Bottomry. 

Justin  t;.  Ballam Hypothecation , 

.,  c-        n        rParo/    Agreement 

Kaines    v.    Sir    Kob.N,  ° 

,,  <(allo      Commencc- 

Knightly   ---..) 

(^mcnt  oj  Voyage  isc). 

Kemp  v.  Andrews Deviation. 

King  x/.  Perry Hypothecation. 

Kitt  v.  Hollister   -  -  Arbitration. 

V ^,.n,,^.  n  ^  Barratry  falfo  De- 

Knightx). Cambridge  •?         . 

(  viation,  Negligence). 

Kmgiit  v.  Dod Deviation. 

Kruser  &  al.  v.  WiL-  ^FaBor  (alfo  Dnu- 
cox  &al. )ble  In/urance). 


D    J    U    D     G     E    D. 


87 


Titles  under  which  each  cafe 
is  inferted  and  (]uuted. 

■  Mafler. 

■  Negligence. 


Ranfom. 
Salt. 
Inter  ejl. 

{ Prohibited  Goods. 


Names  of  the  cafes. 

Lane  v.  Cotton  -   -  -  ■ 
Lane  T).  Sir  R.  Cotton 
Lane  &  al.  f.  Colly er 
Lastlow  &  al.  Case  -  ■ 
Le  Pypre  v.  Farr  -  -  ■ 
Lethulier     v.    Houb- 

LAND      --------V 

(  Convoy  (alfo  Law 
(  Merchant). 
-   -  Barratry. 

Market  (alfo  Ave- 
rage, Salvage,  Va- 
luation, Wager). 
Lilly    &    Roberts    v. {Convoy  (alfo  P/-/r- 

EwER lUm.Difc.  16.84). 

Luke  &  al.  V.  Lyde     -  -  Freight. 
Lutwidge  &al.-y. Grey  -  Freight. 
Lynch&D.\lzel'sCase  -  Fire. 
Malynes  Ger.  Case - 


Lethulier's  Case 
Lewen  v.  Swasso 

Lewis  v.  Rucker 


March  E.  of  v.  Pigot 

Martin  t).  Sitwell  - 
Mason  ly.  Skurray  -  - 
Meggadow  v.  Holt  - 
Mills  v.  Hay  ley  - 


Bla7ik. 

Wager  (alfo  Infuf- 

(iciency) . 

-  Trujl  &  Tnifee. 

-  Peafe. 

-  Law-Merchant. 

-  Abandonment. 
Mills     Frigat      Cask}  Infiifficienry    (alfo 

or---.--.-.  -)Sea-wo7-thy). 

Mi  N  ETON  E    V.   At  HAWKS  -  Dock. 

Mors  &  Sluce  -----  Mafler. 

.,  T  A       C  Commencement    of 

MoTTEUx  w.  Lond.  Ass.  \  ■' 

P         _  _  _ KVoyage    &c.  (alfo 

(Mi/lake). 

NiCKLESON  V.  Croft.  - 

Nighting.\le's  Case   - 

Oyles  v.  Marshall    - 

Parish  v.  Crawford  - 

Pelly      v.      Roy.    Ex. 

Ass.  Co.    ------ 

Pond  t;.  King    -  -   -    -    -  Capture. 

Pringle  v.  Hartley  -  -  Recapture. 

OuEEN  the   v.    Mayor)   .  ,■ 
^  J.  Arbitration. 

of    Carlisle      -  -  -  ) 

Randal  v.  Cockran  --  Reprifal. 

RaTCLIFFE       Sir        J.     V.  )  rr  n 

•'         [  Hojlage. 
Uavis ) 

RATCLIFFE&BoSTOCKiy.^ 

SnooLBRED,  Yi.KTCii-^ Fraud. 

ER,    &   WeSKETT   -    -    -) 

Reed  z;.  Cole Society. 

RlCORD 


-  Declaration. 

-  Miflake. 

-  Court  of  Policies. 

-  Embezzlement. 

}  Ufage  (al  fo  Devia- 
Stion,  Voyage). 


88 


CASES 


ADJUDGED. 


Namrj  of  the  cafes. 
RiCORD  V.  BeTTF.MI  AM 

Roche  v.  Thomi'son  -  ■ 
RooKE  V.  Thurmond  < 

RUCKER    V.   HOLMNGS-  ) 
BURY -\ 

russel  v.  boehm   -  -  - 

Sadler's  Co.  v.  Bad-  > 

COCK ] 

SalISUURY  t'.ToWNSON  ■ 

Salvador  v.  Hopkins  - 
Seaman  x;.  Fonereau  - 
Sharpleyu.Sturrell  - 
Shephard  v.  Brand  -  - 
Shermoui.in  orTER-) 
REMOULiN  V.  Sandys  > 
Slanney  v.  Slanney  - 

SoOM  E    V.    GleEM     -    -     - 

S.  S.  Co.  V.  Buncombe  - 
SpARRowt;.  Caruthers 


Titles  under  which  each  cafe 
is  inferted  and  quoted. 

Hojlagc. 

End  of  Voyage  &?c . 
Concealment      (alfo 
Trujl). 

■  Return. 
Proof. 

'  Fire  (alfo  Interejl). 

■  Deviation. 

■  Eajl- India  Ships. 

■  Concealment. 

■  Bottomry. 
Arbitration. 

•  Capture. 

■  Arbitration. 

■  Bottomry. 
Hojiage. 
Lighter. 

C Seizure  (alfo  Cap- 
SpENCERt;.  Franco  -  -<(ure,      Recapture, 

iTruJl). 
Spencer  Mary  Case  -  -  Lives. 

(  Deviation       (alfo 

(  Barratry). 
Steven  v.  Douglas  -  -  Deviation. 
Stevenson  v.  Snow  -  -  Return. 
Storey  ly.  Brown  -  -  -  Privateer. 
TiERNEY  v.^TWRi^G- }Ufage   (alfo  Con- 
TON    -------  -SjlruHion,  Policy). 


Stamma  v.  Brown  - 


Names  of  the  cafes.  Titles  under  which  each  cafe 

is  inferted  and  quoted. 

Tireman  V.  Hv-tiw ELL  -  Evidence. 

ToMKiNS  V.  Bernet  -  -  Payment. 

ToMKiNs  t;.  Hill    -   -   -  A^ew  Trial. 

Tongue  v.  Watts      -   -  freight. 

T-  iTr  )  Ranfom  (alfo  Sal 

Tranter  xi.  Watson  ->       -^       ^ 


vage). 

Barratry        (alfo 
Precedent, VerdiB). 
Wa  rranty. 
Convoy. 


Vallejo    &  al.    V. 
Wheeler  ----- 

Vezian  v.  Grant   - 

Victorin  v.  Cleeve         ._,. 

Walker  D.R.  Y^.A.&%. Co.-  Damage 
Waples  v.  Eames  -  -  -  Mooring. 
Warren  w.   Fuzz New  Trial. 

Watkinson  V,  Berna-)  ,,  ^  ^, 

>  Hypothecation. 

DISTON       -------) 

Whitehead  t;.  Bance  -Privateer. 
Wiggins  v.  Ingleton  -  Wages. 
Williams  v.  Touchett  -  Concealment. 
WiTTiNGHAMiy.TiioRN- )  Zbfs     (alfo    Re- 

borough    -----  ')iurn). 

Wilson  t;.  Bird Ranfom. 

Wilson  v.  Brunton  &) Penfhable Comma- 

Chalmers     -  -  -  -   -^dities. 
Wilson  v.  Ducket    -   -  Return. 

CCorn    (alfo   Ave- 
Wilson  v.  Smith     -    -<rage,  Policy,   Un- 

(ifs). 
Wilson  &a\.v.  Elliot  -  Deviation. 
Wooldridge    v.    Boy- 


dell 


•  ^'oyage. 


WooLMERt;.  MuiLMAN  -  Ncutval  Ship  Sc. 


3.  See  Prelim.  Difc.  15  to  21,  58,  84.  Amicable  Judicatory,  Chamber  of 
Affurance,  Conful,  Court- Merchant,  Court  of  Policies  of  AJfurancc,  Infurance, 
Jury,  Law  Latofuit  &  Lawyers,  Nezo  Trial,  Precedent,  Trial,   VerdiH. 


A 


E. 


1.  TTTHEN  any  infeftious  diftemper  reigns  among  the  cattle,  graziers 
'  '  or  cow-keepers,  whofe  capital  is  chiefly  employed  therein,  and 
may  be  more  than  they  can  afford  to  lofe,  are  permitted  to  infure  the  lives  of 
their  ftock,  before  the  ficknefs  has  appeared  amongfl  them. — Such  policies 
fhould  always  contain  a  declaration  by  the  perfon  infured,  that  to  his  know- 
ledge no  diftemper  was  at  that  time  amongfl:  them,  and  that  no  difeafed 
catde  fliould  with  his  confent  come  near  thofe  he  infured.     The  infurers  are 

to  take  care  that  they  be  not  over-valued. — 1  Mag.  34. 

2.    In 


0    . 


CHAMBER     OF     ASSURANCE.  89 

2.  In  1774,  an  office  was  eftablifhed  at  Copenhagen,  to  which  the  infured 
are  to  pay  per  head,  annually,  for  their  cattle,  to  receive  ten  crowns 
for  each  that  (hall  die  of  the  diftemper. 

3.  See  Commodity,  Goods. 


CERTIFICATE. 

1.  "jV  TANY  unjuft  demands  are  made  on  infiirers  for  pretended  damages, 
■^■^  by  producing  merely  certificates  thereof  figned,  upon  very  flight 
furveys,  by  interefted  brokers,  or  friends  of  the  afTured,  efpecially  in  foreign 
parts. — The  infurers  have  a  right  to  rejeft  them,  and  to  require  authentick 
proofs,  on  oath  ;  not  only  of  the  reality  of  the  damage,  but  of  the  true  produce 
of  the  effefts. — Divers  inflances  have  occurred  where,  after  the  rejeftion  of 
fuch  certificates,  no  further  demand  was  ever  made. 

2.     See  Prelim.  Difc.  50.  Damage,  Document,  EJlimate,  Proof, 
CHAMBER      OF      ASSURANCE. 

1.  /CHAMBER  of  afiurance,  or  infurance,  is  d^  fociety,  or  affembly,  of 
^"-^  feveral  perfons,  merchants,  traders,  bankers,  and  others,  to  carry  on 
the  bufinefs  of  infuring.— - — Policies  and  contrafts  of  afiurance,  or  bottomry, 
had  been  many  years  ufed  in  France,  and  long  experience  had  fufficiently 
proved  how  ufeful  they  were  to  trade  and  navigation  :  yet,  before  the  year 
1668,  this  bufinefs  of  infuring  was  not  carried  on  but  in  the  maritime  towns 
of  France ;  and  it  was  then  judged  mod  advantageous  to  fettle  it  in  the 
capital. — There  were,  indeed,  before  that  time,  fome  meetings  of  alfemblies 
of  infurance  :  but,  as  they  were  held  only  by  private  perfons,  and  were  not 
authorifed  by  the  king's  letters  patent,  they  had  but  little  credit,  and  their 

policies  were  neither  many,  nor  for  confiderable  fums. It  was,  therefore, 

by  a  decree  of  the  council  of  fi^ate,  dated  the  5th  of  June  the  fame  year  1668, 
that  Lewis  the  14th,  then  reigning,  granted  leave  to  the  merchants,  traders, 
infurers,  and  infured,  and  other  perfons  of  the  city  of  Paris,  properly  qualified, 
who,  for  fome  time  paft.,  had  begun  to  meet  for  tranfafting  the  bufinefs  of  infu- 
rance and  bottomry,  to  continue  their  meetings,  and  even  to  fet  up  an  office, 
which  was  to  be  fi:iled  the  office  of  infurance  ;  over  the  door  of  which  fiiould 
be  put  the  following  infcription  :  "  The  Chamber,  or  Office,  of  Infurances  and 
"  Bottomries,  eftablifiied  by  the  King  ;"  aaid,  on  the  16th  of  the  fame  montli, 
the  lieutenant-general  of  the  police  ordered,  by  a  fentence,  that  the  faid  decree 
of  the  council  ffiould  be  retriflered  in  the  rolls  of  that  court. This  chamber 

o 

was  not  brought  at  once  to  a  degree  of  perfeftion ;  but,  in  1671,  the  partners, 
or  affociates,  to  the  number  of  above  fixty,  of  the  richell  merchants,  bankers, 
traders,  and  citizens  of  Piiris,  who  Imd  a  great  credit  in  trade,  made  in  their 

Z  general 


90 


CHAMBER     O  F     A  S  S  U  R  A  N  C  E7. 


general  afTembly,  held  the  4th  of  December,  a  regulation,  which  was  autlio- 
rifed  by  a  decree  of  the  council,  given  the  10th  of  the  fame  month,  and 
regiftered  in  the  rolls  of  the  police  by  a  fenlence  of  Monf.  de  .la  Reynie, 
lieutenant-general  of  the  faid  police,  the  16th  of  the  fame  month  of  December. 

This  regulation  contains,  in  twenty-three  articles,  the  whole  government, 

or  adminiflration,  of  the  chamber  of  affurance. — The  four  fiifl  articles  related 
to  the  eflablifliing  of  the  general  and  particular  offices  ;  the  laft  of  which  is 
ftiled  the  chamber  of  council : — the  fifth  fettles  to  die  number  of  five  the 
particular  commifTaries,  or  judges,  for  the  affairs  referred  to  it  by  the  general 
office,  in  which  number  are  included  the  judges,  who  report  the  cafes  in  a 
fummary  way ;  and  to  nine  for  affairs  a  litde  more  confiderable ;  all  Which 
judges,  however,  are  to  be  named  by  the  prefident,  and  confented  to  by  the 
parties  concerned  :t— the  fixth  orders  the  general  aflemblies  to  be  held  on  two 
Fridays  in  the  month,  ^very  fortnight ;  and  the  eleventh  treats  of  the  particular 
affemblies  which  are  tp  me^t  or)  the  other  Fridays :— by  the  fevcnth  it  is 
ordered,  that  a  lift  fhall .  be  made  of  the  infurers  and  infured,  widi  their 
names  and  dwelling  places,  to  be  put  up  in  the  hall  of  the  chief  office  : — the 
eighth  fettles  the  diftribution  of  filver  medals,  to  be  given  to  thirty  of  the  moft 
ancient,  who  lliall  be  prefent  at  the  general  affemblies,  at  the  rate  of  four  to 
each,  there  being  no  diftribution  to  be  made  in  the  particular  affemblies, 
according  to  the  exception  fet  down  in  the  eleventh  article  : — the  ninth  and 
tenth  appoint  the  prefident,  and  treat  of  the  meetings  of  the  infurer  and 
infured  : — ^the  twelfth,  thirteenth,  fourteenth,  fifteenth,  fixteenth,  eighteenth, 
and  twenty-firft,  regulate  the  funftions  of  the  regifter  ;  the  manner  of  keeping 
the  books  ;  the  order  to  be  obferved  in  drawing  up  and  clofing  the  policies  ; 
the  carefulnefs,  diligence,  and  difintereftednefs,  with  which  the  regifter  ought 
to  deliver  the  deeds  and  extrafts  of  the  chamber ;  the  correfpondencies  with 
the  fea-port  towns,  and  his  own,  his  cafliier's,  or  under  cafliier's  affiduous 
attendance  at  the  office  : — the  feventeenth  orders  die  judges  appointed  by 
the  chamber,  to  conform  their  fentences  not  only  to  the  conditions  fet  down 
and  determined  in  the  policies,  but  alfo  to  follow  in  eveiy  thing  the  ordi- 
nances, regulations,  ways,  and  cuftoms  of  the  fea : — the  twentieth  declares 
by  whom  the  oath  is  to  be  adminiftcred,  when  required  : — the  twenty-fecond 
contains  regulations  concerning  the  prayers  and  maffes  to  be  faid  for  the 
infurers  and  infured  after  their  death : — laftly,  by  the  twenty-third  the  cham- 
ber appoints  a  regifter,  and  refolves  that  his  majefty  (hall  be  humbly  petitioned 
to  order  the  authorifing  of  this  regulation,    by  a  decree  of   the   fuperior 

council. The   chamber   added  afterwards  feveral  other  articles  to  thefc 

regulations,  and  explained  and  amended  forae  others :  and  all  thofe  regula- 
tions, wherein  the  public  was  concerned,  were  authorifed  by  decrees  of  the 

council. There  is  a  decree  of  the  13th  of  September  1672,  for  leaving  the 

infured  at  liberty  to  chufe  their  debtor ;    it  orders  alfo,  that  the  policies  be 

diftributed  among  the  infurers  with  prudence  and  honefty. Another  decree 

of  the  26th  of  Auguft  1673,  forbids  the  infurers  and  infured  to  carry  the 
difpides  arifing  among  them,  on  account  of  policies  of  infurance  and  bottomry, 
before  the  ordinary  courts  of  juftice  ;    but  obliges  them  to  chufe  arbitrators, 

among 


CHAMBER     OF     ASSURANCE. 


91 


among  thofe  who  compofe  the  chamber,  to  be  their  judges.- There  is  1 

tliird  edi6i,  of  the  elevefnth  of  January  1675,  relating  to  the  infurances  made 
on  a  friend's  account,  and  for  finding  out,  when  required,  the  true  names  of 
the  perfons  for  whom  any  tiling  was  infured. — — Things  continued  in  that 
condition  'till  the  year  1683,  when  the  chamber  judging,  by  the  few.  policies 
they  made  out,  that  it  was  proper  to  eftabUfh  the  company  upon  another 
footing,  devifed  feveral  projefts  for  fetting  up  anotlier  fociety,  upon  the  fame 
foundation  as  the  former :  but  there  pafl'ed  three  years  before  this  fociety  was 
quite  formed,  when  it  was  eftablifhed  by  virtue  of  an  edift  of  the  king,  given 
in  the  month  of  May  1686,  and  regiftered  that  fame  year  in  parliament,  the 
30th  of  the  fame  month  ;  by  which  edift  was  erefted  and  regulated  a  general 
company  for  infurances  and  bottomries  in  the  city  of  Paris, — That  edift  of 
creation  contains,  in  twenty-nine  articles,  the  conditions  under  which  the 
king  was  pleafed  to  eflablilh  this  new  company.  The  chief  of  thefe  articles 
are,  the  fecond,  which  fettles  the  number  of  allociates,  or  partners,  at  thirty 
only ;  the  fourth  which  orders  that  the  company  fliall  have  a  capital  fund,  or 
flock  of  300,000  livres,  divided  into  feventy-five  aftions,  or  (hares  of  4,000 
livres  each,  and  regulates  the  time  during  which  the  company  is  to  continue, 
at  fix  years : — the  tenth,  which  orders  that  the  policies  of  infurance  {hall 
contain  a  claufe,  by  which  the  parties  concerned  fubmit  themfelves  to  an 
aii)itration,  in  cafe  of  any  difputc : — the  fourteenth  mentions  the  appeals  from 
the  fentences  of  the  arbitrators,  and  orders  that  they  fiiall  be  finally  deter- 
mined by  a  counfellor  of  fliate,  the  lieutenant-general  of  the  police,  and  the 
provoft  of  the  merchants  : — the  eighteenth  declares,  that  they  who  fliall  enter 
into  the  partnerlhip  and  commerce  ,  of  infurance,  fliall  not  be  degraded  from 
their  nobility : — the  twenty-fecond  eflabliflies  and  fettles  the  fees  of  the 
regifler  ; — the  twenty-fifth  foi'bids  all  perfons,  but  fuch  as  are  members  of  the 
company,  to  carry  on  any  commerce  of  infurance  and  bottomry  in  the  city 
of  Paris : — the  twenty-feventh  leaves  the  merchants,  traders,  and  other  private 
perfons  of  the  cities  of  Rouen,  Nantz,  St.  Malo,  Rochelle,  Bourdeaux, 
Bayonne,  Marfeilles,  &c.  at  liberty  to  continue  the  bufinefs  of  infuring ;  but 
only  upon  the  fame  footing  as  it  was  before  the  date  of  the  edi6l : — laftly,  the 
twenty-eighth  gives  the  partners  leave  to  draw  up  amongft  themfelves  fuch 
articles  and  rules  as  they  fhall  think  proper  for  the  management  of  the  affairs 
of  their  partnerlhip,  on  condition,  neverthelefs,  to  get  them  authorifed  by  a 

decree  of  the  council. In  confequence  of  the  laft-mentioned  article,  the 

partners  made  a  contract  amongft  themfelves,  on  the  20th  of  May,  which 
contains  the  terms  and  regulations  under  which  they  enter  into  partnerfliip, 
thefe  are  fet  forth  in  forty-three  articles,  the  moft  important  of  which  are  as 
follows : — ^by  the  firft,  the  company  fettles  the  number  of  the  partners  at 
thirty,  and  it's  duration  at  fix  years  : — the  fecond  eftabliflies  the  ftock  of 
300,000  livres,  ordered  by  the  edift  ; — the  fixth  and  twelfth  regulate  the  election 
of  five  direftors,  their  power  and  meetings : — in  the  thirteenth  it  is  agreed 
that  the  general  aflemblies  fliall  be  held  on  Tuefdays  every  week ;  and,  in 
the  fourteenth,  that  the  direftors  fliall  meet  every  Monday,  Wednefday,  and 
Friday : — the  fixteenth  treats  of  the  books  to  be  kept,  of  which  there  ajc  to 

be 


^  CHAMBER     OF     ASSURANCE* 

be  feven  :■ — in  the  twenty-fourth  they  fpeak  of  arbitrations : — in  the  twenty- 
eighth  mention  is  made  of  the  general  account  of  the  fliips,  on  which  the 
company  fhall  have  lent  money,  or  made  infurances,  which  is  to  be  drawn 
up.  every  year  in  December : — the  twenty-ninth  treats  of  the  dividend  of  lo 
per  cent;  to  the  profit  of  the  partners,  which  is  to  be  paid  every  year,  on  the 
5th  of  January : — ^the  thirtieth,  thirty-firft,  thirty-fecond,  and  thirty-third' 
articles  explain  the  value  and  quality  of  the  aftions  or  (hares  : — the  thirty- 
fourth,  thirty-fifth,  thirty-fixth,  and  thirty-eighth,  treat  of  the  cafli  and  cafhier: 
-^laftly,  by  the  forty-fourth,  the  company  retains  the  liberty  of  making,  for 
the  future,  new  refolutions  and  bye-laws,  as  occafion  fhall  require,  and  to  get 

them  authorifed.- This  firfl  regulation,    having  the  force  of  a  contraft,  was 

approved,  and  the  execution  of  it  ordered  by  a  decree  of  the  council,  given 
the  6th  of  June   1686. 

2.  By  the  twenty-fifth  article  of  the  afore-mentioned  edift,  all  commerce 
of  infurances  and  bottomry,  in  the  city  of  Paris,  is  forbid,  except  to  members 
of  the  company  : — this  was  to  be  ignorant  that  confidence  cannot  be  forced, 
that  the  competition  which  is  neceffarily  produced  between  different  chambers 
of  affurance,  renders  the  premiums  moderate,  favours  commercial  under- 
takings, prevents  recourfe  to  flrangers,  divides  the  rifques  amongft  a  greater 
number  of  perfons,  and  renders  the  loffes  infenfible  in  dangerous  conjunftures. 
We  may -attribute  to  this  fpirit  of  reflraint  the  little   progrefs  we  have  made 

in  this    branch  of  commerce, In    1750   there  was    a   new    chamber    of 

commerce  formed  at  Paris,  which  the  king  permitted  to  take  the  title  of 
"  Royal  Chamber  of  Affurances."-.— ^ — The  great  maritime  tow^ns  of  France, 
Bourdeaux,  Dunkirk,  Rochelle,  have  alfo  chambers  of  ailurance  compofed  of 
merchants :  Rouen  hath  feven,  Nantz  three  :  the  extent  of  their  capitals,  and 
the  moderation  of  their  premiums,  indicate  the  progrefs    of  the  nation  in 

commerce. The  Engliih  and  the  Dutch  are  the  infurers  of  all  Europe,  by 

favour  of  the  low  interefl  of  their  money. The  credit  of  thefe  chambers 

or  companies  of  infurances,  depends  chiefly  upon  the  ability  of  the  direftors, 
and  of  the  proper  employment  of  the  fums  depofited  with  them.  Thefe 
funds  are  often  made  ufe  of  in  loans  on  bottomry,  and  in  difcounting  of  public 
and  commercial  paper. — Chambers  of  affurance  may  therefore  be  very  ufeful 
to  the  Rate  ;  they  accelerate  the  circulation  of  fpecie,  favour  paper  credit, 
and  become  a  refource  for  merchants  who  have  immediate  need  of  ready 
money. — Another  advantage  which  thefe  chambers  procure  to  the  nation  is 
that,  by  means  of  their  competition,  and  the  low  premiums  thereby  effa- 
blifhed,  commercial  enterprifes  become  lefs  expenfive,  and  merchants  of  our 
own  nation  are  enabled  to  rival  ftrangers. — Did.  du  Citoycn. 

3.  On  the  15th  of  Oftober  1751,  a  fociety  for  infurance  was  formed  by  the 
Sieurs  Emanuel  Weis  and  company,  in  France,  which  was  regiffered  at  the 
admiralty  the  23d  of  the  fame  month. — There  are  alfo  in  feveral  places  of 
France,  fecrct  focieties  of  infurance : — but  perfons  who  are  of  companies, 
cannot  infure  except  for  account  of,  and  by  fpecial  authority  from  the  fociety. 
• — 2  Valins  Covim.  152.  4.     All 


CHAMBER     OF     ASSURANCE. 


93 


4.  All  differences  arifing  between  any  parties  concerning  affairs  of  in- 
furances  made  in  Middleburgh,  fliall  in  the  firft  inflance  be  enquired  into 
and  be  determined  according  to  this  ordinance  by  commiffioners  of  the  chamber 
of  affurance  here,  who  are  to  the  number  of  three,  appointed  for  that 
purpofe,  and  fhall  be  continued  or  changed  every  year,  at  the  time  of  chang- 
ing officers :  which  faid  commiffioners,  together  with  their  fecretary,  Ihall 
have  for  their  pains  and  trouble  in  the  differences,  that  ffiall  come  before 
them,  one  third  part  of  a  guilder  for  each  hundred  guilders  value,    which 

money  is  to  be  difl^urfed  by  the  plaintiff. Thofe  that  ffiall  think  themfelves 

aggrieved  by  the  decifions  of  the  faid  commiffioners,  may  in  the  firff  in- 
ftance  appeal  to  the  college  of  burgomallers  and  fficriffs  of  this  city. — 
Ordin.  ofMiddelL 

5.  All  djfputes  arifing  in  the  city  of  Rotterdam  relating  to  affu ranees, 
averages,  or  other  affairs  of  navigation,  ffiall,  in  the  firft  inftance,  be  deter- 
mined by  the  chamber  for  the  maritime  law  eftabliffied  in  this  city. Under 

the  denomination  of  maritime  affairs  ffiall  be  comprehended  all  cafes  relating 
to  navigation,  between  the  ffiippers  of  goods  and  the  mafters,  the  loaders 
of  goods  and  the  failors,  between  one  mafter  of  a  ffiip  and  another,  between 
the  mafter  and  his  men,  between  one  failor  and  another,  between  the  fliippers 
of  goods  among  themfelves,  between  owners  and  owners,  between  the  owners 
and  the  ffiippers,  between  owners  and  failors,  between  mafter  and  owners, 
and  likewife   between    owners,  or  mafters    of  fea-faring   veffels,    and   ffiip- 

builder^,  or  purveyors  of  all   the  ftores  and  utenfils  for  a  ffiip's  ufe. All 

difputes  of  the  like  nature,  relating  to  the  navigation  upon  the  Maeze,  and 
other  outlandiffi  rivers,  whether  they  relate  to  mafters,  owners,  or  proprie- 
tors, ffiippers  of  goods,  mafters  of  ffiips,  fervants,  pilots,  ftiip-carpenters,  or 
purveyors,  ffiall  for  the  future  likewife  come  before  the  chamber  for  maritime 
affairs,  in  the  fame  manner,  and  in  the  like  cafes,  as  is  mentioned  above, 
with  refpeft  to  navigation  at  fea;  excepting  that  in  cafes  relating  to  the 
navigation  on  the  Maeze,  and  outlandiffi  rivers,  which  are  not  for  above  the 
value  of  three  hundred  guilders,  the  plaintiff"  ffiall  have  his  choice  to  carry 
the  fame  either  before   the  chamber  for  maritime  affairs,    or  the  chamber  for 

petty  caufes. All  aftions  for  the  forfeiture  of  certain  fums,  either  of  goods 

or  wages,  and  all  other  demands,  relating  to  tranfadions  of  any  of  the  faid 
affairs  belonging  to  the  maritime  law,  ffiall  likewife  l)e  brought  before  the 

chamber   for   maritime  affairs. But   when  the   cafe  extends    to  arbitrary 

correftion,  corporal  puniffiment,  or  any  further  penalty,  befides  the  forfeiture 
of  money,  goods  or  privileges,  then  the  cafe  muff  be  left  to  the  ordinary 
judge,  to   take  cognizance  thereof,  although  the    aftion  be  found  upon  this 

ordinance. The  chamber  for  maritime  affairs  may  in  the  firft  inftance  refer 

to  the  chamber  of  the  gentlemen  ffieriffs,  fuch  caufes  as  may  require  pleadings 
and  proofs,  when  they  are  of  opinion,  that  fuch  further  enquiry  would 
require  a  length  of  time  and  confequently  that  the  fame  could  not  be  as 
conveniently  decided  before  them,  according  to  the  fettled  rules  of  proceeding 
before  their  chamber. In  all  caufes  cognizable  by  this  chamber  judgment 

A  a  ffiall 


94 


CHAMBER     OF    ASSURANCfi. 


fliall  be  given  according  to  the  tcnour  of  this  ordinance,  if  the  cafe  is  ex- 
preflled  therein  ;    but  in  cafes  not  mentioned,  in  conformity  to  the  placarts, 

laws  and  cuflom  of  the  land. The  faid  chamber  is  to  confifl  from  time  to 

time  of  five  commijfioners,  attended  by  a  fecretary  and  melTenger. — The 
commifiioners,  according  to  the  cuftom  of  the  city,  fliall  be  chofen  or  con- 
tinued every  year. For  fupporting  the  faid  chamber  there  fliall  from  time  to 

time  be  added  to  it  a  fubftitute  bailiff,  by  the  name  of  water-bailiff,  in  order 
to  execute  the  orders  and  decrees  of  the  faid  chamber,  when  and  wherefoever 
it  fhall  be  found  requifite.— — For  which  purpofe  he  fliall  be  obliged  to  attend 
the  faid  chamber  every  court  day,  and  to  enquire,  whether  the  commiffioners 
have  any  occafion  for  his  fervice,  unlefs  he  be  other\^ife  engaged  in  the  fer- 
vice  of  the  city,  in  which  cafe  he  is  to  take  care,  as  near  as  poflible,    that  one 

of  his  attendants  be  in  the  way  there. The  faid  water-bailiff  fliail  be  autho- 

rifed  and  empowered  to  fee  the  decifions  of  the  faid  chamber  put  into 
execution,  to  make  complaints  before  the  faid  chamber  againft  the  refraftor)'-, 
in  cafes  of  fines  in  money  or  fuch  like  ;  or,  if  the  cafes  are  of  greater  concern, 
to  give  notice  thereof  to  the  gentleman  officer  of  this  city,  and  likewife  to  take 
the  delinquents  into  cuftody  by  order  of  the  chambet",  as  the  circumftances 

of  affairs  may  require. For  the  fupport  of  the  faid  chamber  for  maritime 

affairs,  there  fliall  be  paid  by  all  the  Ihips,  every  time  they  arrive  from  fea, 
one  guilder  by  each  fhip  of  upwards  of  fixty  lafts   burthen,   and  ten  Rivers  by 

every  fliip  of  fixty  lafts  and  under. Which  twenty  and  ten  ftivers  refpec- 

tively  the  mafters  of  the  veffels  fhall  be  obliged  to  pay  within  a  fortnight  after 
their  arrival  at  furtheft,  under  the  penalty  of  three  guilders  ;  and  if  they  fliould 
depart  again  before  the  fame  is  fatisfied,  to  forfeit  double  the  fum,  half 
whereof  to  go  to  the  informer,  and  the  other  half  to  the  benefit  of  the  poor. 

: The   water-bailiff  and   his  meffen^er,  together   with  the  mafl.er  of  the 

haven  or  port,  are  charged  with  looking  after  the  due  execution  thereof- 


Provided,  neverthelefs,  that  the    commiffioners  may,   for   fuflicient    reafons, 

grant   a   longer   time    than    a    fortnight. The    commiffioners    and    their 

fecretary  together   fliall  have  befides    one  third  per  cent,   of  every  hundred 

guilders,  that  fhall  be  demanded  by  the  way  of  aflurance. They  fliall  alfo 

have  from  time  to  time,  for  the  making  up  of  ^«2(?r^/ awrrt^^j,  onepermille 
of  the  capital  that  contributes  towards  fuch  average. — Ordin.  of  Rot t. 

6.     All  differences  arifing  between  parties  on  account  of  infurances  made 
in  this  city  fhall  prcfently  be  examined,  and  by  the  commiffioners  of  infurance 

here  be  determined  according  to  this  ordinance. And  the  commiffioners 

may  likewife  decide,  according  to  the  faid  ordinance,  all  diflerenccs  arifing 
from  infurances  made  out  of  this  city,  which  fliall  be  relative  to  the  chamber 
of  infurance,  or  to  this  exchange. — And  the  commiffioners,  jointly  with  the 
fecretary,  fliall  have,  of  all  the  differences  brought  before  them  concerning 
lofl'es,  one  third  part  of  a  guilder  of  each  one  hundred  guilders,    for  their 

labour  and  trouble  ;  which  money  fliall  be  difl^urfed  or  paid  by  the  plaintiff. 

.  They  fliall  likewife  have  one  per  thou fand  of  the  capital  for  the  fettling  of  the 
gro/s  average,   which   the  grofs  average   fliall   pay  :    as  alfo   of  differences 

concerning 


CHAMBER    OF    ASSURANCE.  95 

concerning  premiums  demanded   one   per  thoufand  of  the  fum  infured. 


The  lofs  or  damage  of  the  fliip,  or  goods,  having  been  made  to  appear  to  the 
commiflioners,  by  exhibition  of  policies,  bills  of  lading,  manifelis,  proper 
certificates,  or  other  jufl  proofs,  and  the  underwriting  of  the  policies  being 
alfo  proved,  and  that  intimation  was  made  to  the  parties,  three  raontlis  before, 
of  the  lofs  ;  the  faid  commiffioners  may  order  the  money  demanded,  either 
the  whole,  or  part,  to  be  provifionally  depofited,  with  permiihon  to  the 
infured  to  receive  the  money  depofited,  on  giving  fufficient  fecurity,  to 
return  the  fame,  with  intereft  at  eight  per  cent,  in  cafe  it  is  afterwards  found 

that  it  ought  fo  to  be. Provided  always  that  copies  of  fevery  thing,   and  a 

day  to  anfwer,  fliall  be  granted  to  the  refpondent,  on  his  requiring  it, 
before  the  commiffioners  fhall  difpofe  of  the  money   provifionally  depofited. 

Any  perfon  being  fummoned  concerning  damage,  and  not  appearing  in 

three  days  to  demand  copies,  or  to  de fire  a  day,  he  fliall  be  proceeded  againft 
on  the  firft,  fecond,  and  third  default ;  and  on  the  third  default  the  money 
depofited  Ihall  be  difpofed  of  either  provifionally,  or  finally,  in  fuch  manmer 

as  the  commifiioners  fliall  think  proper. It  fliall  be  lawful  to  appeal   from 

the  decrees  pronounced  by  the  commiflioners,  as  alfo  from  the  regulation  of 
grofs  averages,  to  the  magifl;rates  (Schepenen)  of  this  city,  M'itbinthe  fpace 
of  ten  days  :  but  from  a  provifional  decree  there  flialj  lie  no  appeal. — « 
Or  din.  of  Anift, 

7.  It  being  our  royal  pleafure,  for  the  more  fpeedy  termination  of  difpidcs 
arifing  in  infurance  and  average  cafes,  to  eflablifti  a  particular  court  of 
infurance,  which,  when  the  parties  at  variance  cannot  reconcile  themfelves, 
nor  are  fatisfied  with  the  award  o^  arbitrators  chofen  thereto  on  both  fides 
ihall  decide  them  fo  that  no  further  appeal  or  beneficium  revifionis  fliall  eitiier 
be  defired  or  granted  ;  this  tribunal  fliall  confift;  of  thirteen  menjbers,  viz. 
two  of  our  high  court  of  juflice  at  Stockholm,  two  ofiicers  of  the  admiralty, 
three  of  our  college  of  trade,  two  magiftrates  who  have  been  traders,  and 
four  merchants  w^H  verfed  in  foreign  cominerce  and  navigation. — Likewife 
the  members  of  this  court  of  infurance  fliall,  before  they  fit  as  judo-es,  take 
the  oaths  appointed  to  be  taken  by  judges  :  and  in  all  cafes  which  ifhall  come 
before  them  they   fliall  carefully  regulate  themfelves   by    the    ordinance  on 

procefles. No  verbal  hearing  fliall  be  permitted,   unlefs  the  infur^ce  court 

finds  it  neceflary  for  their  own  better  information,  or  at  the  requeft  of  one  of 
the  parties  for  adducing  proofs  which  he  was  not  poflefled  of  at  the  e.xchano-e 
of  writings.     The  party  abufing  this  indulgence   fliall   forfeit  fifty  dollars  or 

more  according  to  the  nature  of  the  circumftances. He  who  fpeaks  or 

writes  any  thing  with  a  view  of  concealing  the  truth  or  impofing  on  the  court, 
fliall  be   fined  twenty  or  thirty  dollars,  or  more,  according'to  the  nature  of 

the  circumftances. Any  one  infulting  his  advcrfary,  before  the  court. of 

infurance  either  by  word  of  mouth  or  writing,  by  mockery  or  jviiling,  by 
defamatory  accufations  or  by  geflures  ;  he  fliall  incur  the  fame,  or  even  a 
larger  penalty  than  thelaft  mentioned. — Ordin.  of  Slockh. 

8.  Where 


g6  C    I    N    Q    U    E  -  P    O    R    T    S. 

8.  Where  a  difpute  cannot  be  amicably  adjufted,  in  which  the  inruraiice 
company  is  to  fpare  no  pains,  it  fhall  be  brought  before  our  ivfurance  court, 
which  is  to  confift  of  five  perfons,  viz.  two  of  the  magidracy,  or  the  police 
and  commerce  chamber,  two  fea  captains,  and  one  of  the  thirty-two  city 
council ;   the  regifters  to  be  kept,  and  the  aft  to  be  drawn  up  by  the  fecretary 

of  the  police  and  commerce  chamber. And  that  the  infurancc  court  may, 

when  defired,  meet  without  delay,  we  have  recommended  to  the  prefident  of 
the  admiralty  and  the  magiftracy  of  Copenhagen  that,  upon  being  dul/ 
applied  to  for  the  decifion  of  an  affair,  they  fhall  immediately  nominate 
perfons  of  each  college  to  fit  as  judges  on  it ;  and  in  cafe  of  fuch  differences 
betwixt  the  infurance  office  on  one  hand,  and  the  infured,  or  the  mafter,  on 
the  other,  that  the  parties  cannot  fettle  amongft  themfelves,  they  fliall  be  heard 
and  determined  in  the  faid  infurance  court :  yet  fhall  both  parties,  in  cafe 
they  be  properly  authorifed,   be  allowed  to  bring  their  caufe  to  be  finally 

decided  before  our  high  court  of  jufice. And  for  the  better  difcovery 

of  truth  and  more  certain  adminiftration  of  juflice,  it  is  permitted  that 
witneffes,  who  on  particular  occafions,  and  efpecially  where  a  fufpicion  lies, 
are  to  be  heard,  in  cafe  they  have  not  been  heard  before  in  other  courts  under 
whofe  jurifdiftion  they  live,  may  and  fhall,  if  inhabitants  of  this  city,  be 
heard  before  this  infurance  court. — Every  decree  thus  rendeied  by  the  court 
of  infurance,  being  reduced  into  a  formal  act,  at  the  party's  defire  a  true  copy 
thereof  (hall  be  given  to  him  by  the  fecretary,  and  immediately  afterwards, 
according  to  further  order  from  our  high  court  of  juflice_,  or  the  fequel  of  this 
ordinance,  be  immediately  put  in  execution. — Ordin.  of  Copenh. 

g.  See  Prelim.  Dfc.  8,  15  to  22,  35.  Amicable  Judicatory,  Arbitration, 
Bottomry,  Company,  Conful,  Court  Merchant,  Court  of  Policies,  Difpute, 
Infurance,  Payment,  Society. 


CHANCERY. 

See  Prelim.  Difc.  33.  Arbitration  and  Award,  Civil  Law,  Law. 

CHARTER         PARTY. 

Sltl  Admiralty  and  Admiralty-Court,  Blank,   Civil  Laxo,  Document,  Proof. 

CINOUE-PORTS. 

1.  'T^HE  five  ports  are  Haftings,  Romney,  Hythc,  Dover,  and  Sandwich: 

-*•     they    have    various    privileges   granted  them,   as   a   particular 

jurifditlion  :  their  warden  having  the  authority  of  an  admiral  among  them, 
and  fending  out  writs  in  his  own  name. — He  is  fupreme  admiral  within  his 
own  jurifdi6lion,  without  appeal  as  from  other  admiralty -courts. — 5  Eliz.  c.  5. 

The 


CIVIL  LA    W.  ^7 

The  jurifdidion  of  the  cinque-ports  is  not  to  be  affecled  by  the    12  Ann. 

ft.  2.  concerning  wreck  and  falvage. — 4  Geo.  1.  c.  12. — 26  Geo.  2.  c.  in. 

2.     See  Admiralty  and  Admiralty -Court,  Anchor,  Salvage,  Wreck. 

CIVIL         LAW. 

1.  'THHERE  being  a  necefTity  of  another  law,  befides  the  particular  law  of 
-*"  each  country,  the  civil  law  has  been  chofen  by  mod  foreign  dates  ; 
becaufe  it  has  from  the  time  of  the  Romans  run  through  all  nations,  and  has 
been  fo  generally  applauded  and  allowed  of  by  all,  that  now  at  laft  it  has 
purchafed  to  hfelf  the  honour  to  be  fliled  jus  gentium,  the  law  of  nations,  or 
jus  commune,  the  common  lazo  of  all  Europe,  becaufe  it  hath  more  in  it  of  the 
law  of  nature,  that  is  common  to  all  mankind,  than  any  other  law  of  man. — ■ 
Sir  Robert  Wifcmans  Law  of  Laws,  260. 

2.  Remarks. — The  maritime  laws  which  are  interfperfed  throughout  this 
work,  having  a  clofe  affinity  and  indeed  being  incorporated  with  the 
civil  law,  a  due  knowledge  of  the  latter  fhould  feem  to  be  indifpenfably 
requifite  to  enable  us  to  make  a  right  judgment  in  the  decifion  of  maritime 
controverfies.  I  fliall  not  prefume  to  take  upon  me  to  afcertain  the  limits, 
power,  and  jurifdiftion  of  the  courts  of  common  lazv,  when  compared  with 
that  of  the  high  court  of  admiralty :  I  fhall  only  obferve,  that  they  have  for 
fome  ages  been  jealous  of  the  power  and  authority  of  each,  and  the  courts  of 
common  law  feem  to  have  gained  the  afcendancy,  and  to  have  drawn  all  the 
bufmefs  they  could  from  the  civil  law  courts. — Whether  this  has  proved  more 
for  the  eafe  and  advantage  of  the  fubjefts  of  this  kingdom,  I  cannot 
prefume  to  judge.  I  hope,  however,  that  I  may  be  permitted  to  fay,  without 
offence,  that,  in  whatever  court  maritime  and  commercial  difputes  and  litiga- 
tions are  brought  for  adjudication,  thofe  who  are  to  plead  or  to  adjudge  in 
fuch  courts,  cannot  be  too  well  acquainted  with  the  maritime  lazos  o^  \vt\^\t 
and  authority  that  have  been  promulgated  in  all  wife  and  civilized  nations. 

Now  as  it  is  certain,  that  it  is  in  the  body  of  the  civil  law  we   have  the 

mod  complete,  if  not  the  only  coUeclion,  of  the  rules  of  natural  reafon  and 
equity,  which  are  to  govern  the  a6lions  of  mankind ;  and  therefore  it  is,  that 
it  has  been  called  ratio  fcripta,  written  reafon,  as  containing  the  mod  perfeft 
rules  of  reafon  for  deciding  all  differences  that  may  arife  amongd  men  in 
their  intercourfe  with  one  another ;  and  as  all  maritime  and  commercial 
laws  ought  to  be  founded  on,  and  confident  with  the  principles  of  the 
civil  law,  which  is  the  fame  in  all  countries;  it  follows  that  the  dudyofthe 
civil  law  diould  by  no  means  be  neglefted  in  a  trading  empire. 

3.  TnQ  lata  of  natio7is  is  founded  on  the  principles  of  the  civil  law,  and 
the  law  of  nations  is  abfolutely  neceffary  to  be  well  underdood,  as  well  with 
relation  to  treaties  of  commerce,  and  of  peace  and  friendfhip,  and  of  all  kinds 

Bb  of 


g8  CLAIM. 

of  alliance  between  nation  and  nation,  as  with  regard  to  all  manlime  concerns 
between  one  ftate  and  another. — And  the  necefiity  of  the  law  of  nations, 
and  confequently  the  civil  law  thereupon  grounded,  being  well  underftood  by 
the  ableft  lawyers  in  this  kingdom,  appeared  manifeflly,  and  beyond  con- 
tradiftion,  upon  a  very  important  occafion  ;  I  mean  the  affair  that  happened 
between  his  late  Majefly  George  the  fecond,  and  the  King  of  Pruffia,  with 
refpecl  to  a  memorial  (entitled  Expojitidn  dcs  Motifs)  and  other  papers, 
delivered  by  Monf  Michell,  the  King  of  Pruffia's  fecretary  of  the  embalfy,  to 
his  grace  the  Duke  of  Newcaflle,  concerning  the  Silefia  loan  :  for  in  the 
Duke  of  Newcaflle's  letter,  by  his  Majefly 's  order,  to  Monf  Michell,  in  anfwer 
to  the  faid  memorial,  &c.  there  is  the  mofl  profound  knowledge  in  the  law  of 
nations  and  the  civil  law  difplayed  by  thofe  able  civilians  and  lawyers,  who 
were  ordered  by  his  Majefly  to  draw  up  the  faid  anfwer. 

4.  Mofl  of  the  decifions  in  our  courts  of  equity,  are  grounded  on  the 
authority  and  reafon  of  the  civil  law  ;  the  very  terms  and  maxims  of  which 
are  found  in  the  arguments  in  thofe  decifions. 


'O' 


5.     See  Admiralty  and  Admiralty-Court,  Appeal,    Capture,  Law,  Laxo  of 
Nations,  Maritime  Laxo,  Oleron,  Rhodian  Laws,  Treaty,  Wifbuy  Lazos. 


CLAIM. 

1.  T)ROPRIETORS  (and  their  faftors  or  agents)  of  fhips  or  goods  which 
-*-  have  been  wrecked,  flranded,  taken,  retaken,  feized,  detained,  or 
condemned,  ought  to  ufe  their  utmofl  diligence  in  making  claim  thereof,  in 
due  form,  and  furnifliing  proper  and  authentic  documents  to  that  effeft, 
in  cafes  where  there  is  a  right,  and  hope  of  recovery  or  falvage  ;  for,  negli- 
gence or  inaftivity  on  fuch  occafions  would  be  highly  culpable  and  fraudulent, 
\v^ith  regard  to  infurers  ;  to  whom,  on  their  fatisfying  the  lofs,  fecurity  ought 
to  be  given  by  the  infured,  or  their  agents,  that  fuch  claim  fhall  be  duly  made 
and  profecuted,  at  the  charge,  and  with  the  advice  and  affiflance  of  the 
infurers ;  and  alfo  that  they  fhall  be  reimburfed  their  due  proportion  of  the 
value  of  all  that  fhall  be  reftored,  or  faved. 

2.  A  MASTER  of  a  fhip  and  cargo,  which  may  have  fallen  under  any  of 
the  aforementioned,  or  fimilar  circumflances,  who  leaves  the  place  where  they 
may  have  happened,  without  exhibiting  authentic  papers,  and  exerting  his 
befl  endeavours  to  recover  his  fhip  and  cargo,  or  without  duly  claiming, 
appealing,  &c.  as  the  cafe  may  require,  is  liable  to  be  fued,  and  to  anfwer  for 
not  having  done  his  duty. 

.3«-.  S'E.'s.  Abandonment,  Appeal,  Bankrupt,  Capture,  Condemnation,  Detention, 
Document,  General  Average,  Law  of  Nations,  Lofs,  Mafqued  Ship  or  Property, 
Negligence,  Neutral  Ship  or  Property,  Prize,  Property,  Ranfom,  Recapture, 
Salvage,  Stranded.  CLAUSE. 


1 


COLONY.  gg 

CLAUSE. 

See  Prelim.  Difc.  51,  52.   Alteration,   Blank,  Broker,  ContraEl,  Deviation, 
Policy,  Touching,  Valuation,  Written  Claufe. 

COLONY. 

\.  "D  Y  Stat.  12  Car.  1.  c.  18.  f.  18. — No  fugars,  tobacco,  cotton,  wool, 
-^J  indicoes,  ginger,  fuftick,  or  other  dying  wood,  of  the  produftion  of 
any  Englifli  plantations  in  America,  Afia,  or  Africa,  fhall  be  carried  from  any 
of  the  faid  Englifli  plantations  to  any  place  whatfoever,  other  than  to  fuch 
Englilh  plantations  as  belong  to  his  Majefty,  or  to  England,  Ireland,  Wales, 
or  Berwick,  there  to  be  laid  on  fhore  ;  under  the  penalty  ox  forfeiture  of  the 
goods  or  the  value  thereof,  as  alfo  of  the  (hip,  with  her  tackle,  the  one  moiety 
to  the  king,  and  the  other  moiety  to  him  that  fhall  feize  or  fue  for  the  fame 

in  any  court  of  record. S.  ig.    For  every  fhip  which  fhall  fet  out  from 

England,  Ireland,  Wales,  or  Berwick,  for  any  Englifli  plantation  in  America, 
Afia,  or  Africa,  bond  fhall  be  given  with  one  furety  to  the  chief  officers  of  the 
cuftom-houfe  of  fuch  port  from  whence  the  fhip  fhall  fet  fail,  to  the  value  of 
loool.  if  the  fhip  be  of  lefs  burden  than  one  hundred  tons,  and  of  2000I.  if  the 
Ihip  be  of  greater  burden,  that  in  cafe  the  fhip  fhall  load  any  of  the  faid 
commodities  at  the  Englifh  plantations,  the  fame  fhall  be  by  the  faid  fhip 
brought  to  fome  port  of  England,  Ireland,  Wales,  or  Berwick,  and  fliall  there 
unload  the  fame,  danger  of  the  feas  excepted  ;  and  for  all  fhips  coming  from 
any  other  place  to  any  of  the  plantations,  the  governor  of  fuch  plantation 
fhall,  before  the  fhip  be  permitted  to  load  any  of  the  faid  commodities,  take 
bond  to  the  value  aforefaid,  that  fuch  fhip  fhall  carry  all  the  aforefaid  goods 
to  fome  other  of  his  Majefty's  Englifh  plantations,  or  to  England,  Ireland, 
Wales,  or  Berwick ;  and  every  fhip  which  fliall  take  on  board  any  of  the 
aforefaid  goods,  until  fuch  bond  given  to  the  governor,  or  certificate  produced 
from  the  officers  of  any  cuflom-houfe  of  England,  Ireland,  Wales,  or  Berwick, 
that  fuch  bonds  have  been  there  given,  fhall  \>q  forfeited  with  all  her  tackle,  to 
be  employed  and  recovered  as  aforefaid.  And  the  faid  governors  fhall  twice 
every  year  return  copies  of  all  fuch  bonds  to  the  chief  officers  of  the  cuftoms 
in  London. — (For  the  former  part  of  this  aft  fee  Navigation). 

2.  By  Stat.  15  Car.  2.  c.  7.  f.  6.- — No  commodity  of  the  produftion  of 
Europe  fhall  be  imported  into  any  plantation  or  place  which  fhall  belong  to 
his  Majefly  in  Afia,  Africa,  or  America,  but  what  fhall  be  fiiipped  in  England, 
Wales,  or  Berwick,  and  in  Englifli-built  fhipping,  and  whereof  the  maflers  and 
three-fourths  of  the  mariners  are  Englifli,  and  which  fhall  be  carried  direftly 
thence  to  the  plantations,  under  penalty  of  the  lofs  of  fuch  commodities,  &c. 

S.  7.  provided  that  it  fliall  be  lawful  to  lade  in  fhips,  navigated  as  in  the 

foregoing  claufe,  in  any  part  of  Europe,  fait  for  the  fifheries  of  New-England 

and 


COLONY. 


lOO 

and  Newfoundland,  and  to  (hip  in  the  Madeiras,  and  in  the  Weflern  Iflands, 
or  Azores,  wines  of  the  growth  thereof;  and  to  take  in  fervants  or  horfes  in 
Ireland,  and  to  fhip  in  Ireland  viftuals  of  the  produftion  of  Ireland  ;  and  the 
fame  to  tranfport  into  any  of  the  faid  plantations. 

3.  By  Stat.  5  Ann.  c.  8.  f  4. (the  aft  of  union  with  Scotland) — The  fubjefts 
of  the  united  kingdom  ifiall  have  full  freedom  of  trade  and  navigation  to  the 
ports  and  dominions  thereof. 

4.  By  Stat.  16  Geo.  3.  c,  5.  f  1. — All  manner  of  trade  and  commerce  is 
and  fliall  be  prohibited  w-ith  the  colonies  of  New-Hampfliire,  Maffachufet's- 
Bay,  Rhode-Hland,  Conneclicut,  New-York,  New-Jerfey,  Penfylvania,  the 
three  lower  counties  on  Delaware,  Maryland,  Virginia,  North-Carolina, 
South-Carolina,  and  Georgia  ;  and  all  fliips  and  veffels  of  or  belonging  to  the 
inhabitants  of  the  faid  colonies,  together  with  their  cargoes,  apparel,  and 
furniture,  which  fliall  be  found  trading  in  any  port  or  place  of  the  faid  colonies, 
or  going  to  trade,  or  coming  from  trading,  in  any  fuch  port  or  place,   fliall 

become  forfeited. S.  2.  Nothing  in  this  aft  fliall  extend,  or  be  conflrued 

to  extend,  to  fuch  fhips  and  velfels  as  fliall  be  aftually  retained  or  employed 
in  his  Majeftv's  fervice,  or  to  fuch  fliips  and  veflels  as  fhall  be  laden  with 
provifions  for  the  ufe  of  his  Majefly's  fleets,  armies,  or  garrifons,  or  for  the 
ufe  of  the  inhabitants  of  any  town  or  place  garrifbned  or  poflefled  by  any 
of  his  Majefly's  troops,  provided  the  mafters  of  fuch  fliips  and  veflels  refpec- 
tively  fliall  produce  a  licence  in  writing,  under  the  hand  and  feal  of  the  lord 
high  admiral  of  Great-Britain  for  the  time  being,  or  of  three  or  more 
commiflioners  for  the  time  being  for  executing  the  office  of  lord  high  admiral 
of  Great-Britain,  or  of  the  commanders  of  his  majefly's  fleets  or  armies,  or  of 
the  governor,  lieutenant-governor,  or  commander  in  chief  of  any  of  his 
majefly's  colonies  or  provinces  not  herein  before  mentioned,  fpecifying  the 
voyage  in  which  fuch  fliip  or  veflel  fliall  be  employed,  and  exprelflng  the 
time  for  which  fuch  licence  fliall  fubfift  and  be  in  force,  and  alfo  exprefling 
the  quantity  and  fpecies  of  the  [aid  Jlojrs  awd  provifions  on  board  :  and  if  any 
goods,  wares,  or  merchandifes,  other  than  ftores  and  provifions  for  his  Majefly's 
ufe,  or  provifions  for  the  life  of  the  inhabitants  of  any  town  or  place  gairifoned 
and  poflTefled  by  his  Majefly's  troops,  fliall  be  found  on  board  fuch  fliips  or 
veflels  (the  neceflary  ftores  for  the  fliip's  ufe,  and  the  baggage  of  the  paffen- 
gers,  only  excepted)  in  any  or  either  of  thofe  cafes,  the  faid  goods,  w^ares,  and 
merchandifes  fliall  ht  forfeited,  and  fliall  and  may  hefeized  and  profecuted  in 

the  manner  herein  after  direfted. -S.  3.  The  fole  property  of  all  prizes  fliall 

be  vefted  in  the  captors. S.  5,  &c.  contain  direftions  how  to  proceed  in 

condemnation  of  prizes,  appeals,  fales,  &c. S.  24.  Ifanyfliip,  veflel,    or 

boat,  taken  as  prize,  or  any  goods  therein,  fliall  appear  and  be  proved,  in  the 
high  court  of  admiralty,  or  vice-admiralty  court,  to  have  belonged  to  any  of 
his  Majefly's  fubjecls  of  Great-Britain  or  Ireland,  or  any  of  the  dominions 
and  teiritories  remaining  and  continuing  in  their  allegiance  to  the  king,  and 
under  his  Majefly's  prote6lion,  which  were  before  taken  or  furprifed  by  any  of 

his 


4 


COMMENCEMENT     OF    VOYAGE     OR    RISQUE.  loi 

his  Majefly's  rebellious  colonies  or  plantations  before  mentioned,  and  at  any 
time  afterwards  again  furprifed  and  retaken  from  his  Maje{l)'"s  faid  rebellious 
colonies  or  plantations  by  any  of  his  Majefly's  fhips  of  war,  or  other  fliip, 
vedel,  or  boat,  under  his  Majefly's  protection  and  obedience,  that  then  fuch 
fliips,  veffels,  boats,  and  goods,  and  every  fuch  part  and  parts  thereof  as  afore- 
faid,  formerly  belonging  to  fuch  his  Majefly's  fubjecis  remaining  and  conti- 
nuing under  his  proteftion,  fhall  in  all  cafes  be  adjudged  to  be  reflored,  and 
fhall  be,  by  decree  of  the  faid  high  court  of  admiralty  or  vice-admiralty  court, 
accordingly  reflored  to  fuch  former  owner  or  owners,  or  proprietors,  he  or  they 
paying  for  and  in  lieu  oS.  falvage  (if  retaken  from  the  rebels)  one  eighth  part 
of  the  true  value  of  the  fliips,  veffels,  boats,  and  goods  refpeftively  fo  to  be 
reflored  ;  which  falvage  fliall  be  anfwered  and  paid  to  the  captains,  ofhcers, 
and  feamen,  to  be  divided  in  fuch  manner  as  before  in  this  aft  is  direfted 
touching  the  fliare  of  prizes  belonging  to  the  flag  officers,  captains,  ofhcers, 
feamen,  mariners,  and  foldiers. 

5-  By  Slat.  17  Geo.  3.  c.  7.  f  1. — CommifTioners  of  the  admiralty,  &c. 
may  illlie  forth  commifions  to  commanders  of  veffels,  for  taking  fliips,  &c. 
belonging  to  the  rebellious  colonies,  &c. :    all  prizes  to  belong  to  the  captors. 

S.  2.  Except  when  fuch  coramiffioned  fliips  are  under  convoy. S.  10. 

If  the  commander  of  any  commiffioned   fliip  fliall  agree    with   any  perfon 
belonging  to  any  prize  taken,  for  the  ranfom  thereof,  &c.  he  fliall  be  deemed 

n  pirate,  and  fuller  accordingly. S.  14,  Certain  claufes  in    16  Geo.  3.  c.  5. 

refpcfting  condemnation,  proceedings,  &c.  to  be  applied  in  executing  this  aft. 

S.  15.  The  treafurer  of  the  navy  to  pay  to  the  officers,  feamen,   &c.   on 

hoard  any  of  his  Majefly's  fhips  of  v/ar,  or  any  commiffioned  fliips,  who  fliall 
take  any  fliip  of  war,  &c.   from  the  rebels,  5I.  for  every  man  on  board  fuch 

fliip,  &c. S.  18.  Prizes  which  had  been  taken   from  his  Majefly's  fubjefts 

not  in  rebellion,  to  be  rejlored  to  them,  on  payment  of  one  eighth  part  of  the 
value  thereof  in  lieu  of  falvage. 

6.  Remark. — The  continuation,  or  repeal  of  the  above-mentioned  fla- 
tutes,  or  any  part  thereof,  depends  on  the  events  of  the  prefent  unfortunate 
war  with  the  North-Ameiican  Colonies,  and  with  France  and  Spain.  In  the 
mean  time,  not  only  thefe  powers,  but  almofl  every  other  maritime  flate  in 
Europe,  feem  bent  upon  acquiring  a  fhare  in  the  commerce  of  America ;  and 
even  extending  the  freedom  of  navigation  beyond  the  bounds  hitherto  fixed 
by  the  law  of  nations. 

7.  See  Prelim.  Dzfc.  2g.  and  Appendix,  Navigation  and  Navigation  AB, 
Prohibited  Goods,  Scotland. 


COMMENCEMENT     OF     VOYAGE    OR     RISQUE. 

I'  ^^  AS  E.     A.  had  infured  for  B.  and  plaintiff,   his  affignees,  on  the  fliip 
^'•^  E.  with   the  cargo  ;   and  the  entry  in  the  company's   book  of  the 

C  c  contraft 


i02         COMMENCEMENT    OF    VOYAGE    OR    RISQUE. 

contrafcl  was  in  fliort  items  called  a  label,  which  was  thus : — "'  at  and  from 
Fort  St.  George  to  London,  loft  or  not  loft  :" — and  the  policy  was  foon  after 
made  out  and  taken  in  the  following  words  : — "  that  the  adventure  was  to 
commence  from  the  flip's  departing  from  Fort  St.  George  to  London." — 
Before  the  infurance  was  made  the  ftiip  was  loft  in  Bengal  river,  whither  flie 
had  been  fent  from  Fort  St.  George  to  refit. — The  bill  was  brought  to  have 
the  infurance  money  paid,  being  500I.  as  a  lofs,  &c. ;  and  founded  the  equity, 
that  the  policy  was  not  made  agreeable  to  the  label,  according  to  which  the 
rifque  is  to  commence  from  the  fliip's  coraingfrf  to  Fort  St.  George  ;  and  the 
going  to  Bengal  to  refit  being  a  thing  of  neceftity  for  performing  the  voyage- 
was  no  deviation  ;  and  the  lofs  being  during  that  time,  was  within  the  intent 
of  the  contraft  for  the  infuring. — Lord  Chancellor  Hardwicke  faid,  this  was 
not  proper  to  determine  here.  The  ift  queftion  is  as  to  the  agreement : 
2d  as  to  the  breach ;  and  doubted  as  to  the  agreement.  The  memorandum 
is  not  a  printed  form  as  to  the  material  points,  and  the  policy  muft  be 
governed  by  that,  if  not  varied.  The  words  in  the  memorandum,  or  label, 
[at  Fort  St.  George)  include  \\\tfay  of  the  ftiip  there  ;  and  the  policy  follows 
the  words,  but  adds  thus,  viz.  "  The  beginning  of  the  adventure  to  be  from 
the  ftiip's  departing  from  Fort  St.  George  for  London ;"  which  excludes  tlie 
rifque  whilft  the  Ihip  ftayed  there  : — and  this  feems  an  inconfiftency  in  the 
policy,  firft  to  defcribe  the  voyage  at  and  from,  &c.  and  then  to  exclude  the 
rifque,  &c. — This  feems  a  mifake  in  writing  the  policy,  and  is  to  be  rectified 
as  in  the  cafe  of  articles,  or  a  fettlement :  and  decreed  the  words  to  be  added 
in  the  policy,  for  the  adventure  to  commence  at  and  from  Fort  St.  George. — 
Fz7Zi  y4/5ir.  Tit.  Bottomry  Bonds,  Dec.  6,  1739- — Motteux  and  Loud.  AfJ.  Co. 
• — 1  Atkyns.  545. 

2.  Case.  A  fiiip  lying  in  the  harbour  of  Dundee  was  freighted  to  carry  a 
cargo  of  lead  from  Leith  to  Campvere,  and  infured  from  the  Frith  of  Forth  to 
that  port.  A  freight  in  the  mean  time  came  in  the  way  from  where  (lie  then 
lay  (Dundee)  to  Campvere,  which  ftie  agreed  to  take,  and  give  up  the  other, 
viz.  that  from  Leith :  the  policy  was  not  altered,  either  from  inattention,  or 
that  they  confidered  it  in  no  way  material,  whether  the  velfel  failed  from  the 
Frith  of  Tay,  or  Forth,  as  the  port  of  deftination  (Campvere)  was  the  fame  in 
both  cafes. — The  fliip  was  loft  in  her  way  out,  and  the  matter  iffuedin  alaw- 
fuit  before  the  court  of  king's-bench. — The  underwriters  argued,  that  they 
could  not  be  made  liable,  as  the  flip  had  not  failed  fron  the  Frith  of  Forth,  as 
fpecified  in  the  policy, — Lord  Mansfield  defired  to  know  what  courfe  the 
veflel  fteered  from  Dundee,  and  particularly  whether  fiie  had  come  fafe  into 
the  courfe  which  is  in  general  taken  from  the  Frith  of  Forth. — It  was  pro\'ed 
by  the  oaths  of  five  witnefl'es,  that  the  flip  came  even  with  the  precintl  of  iht 
Frith  of  Forth,  being  two  miles  off"  the  Ifle  of  May,  and  fo-continued  in  the 
very  fame  courfe  as  if  ftie  had  come  from  Leith,  or  any  other  port  within  the 
Frith  of  Forth,  for 'Campvere. — Lord  Mansfield  fiiid  that,  that  made  the 
matter  xery  clear  :  had  the  veflel  been  loft  between  the  Frith  of  Tay  and  the 
Ifle  of  May,  the  infurers  could  not  be  liable  ;   but  having  come  in  fafety  into 

the 


COMMENCEMENT     OF    VOYAGE     OR     RISOUE.  inc. 

the  courfc  taken  in  general  by  (hips  going  from  the  Frith  of  Forth,  the  place 
from  which  the  infurance  commenced,  no  matter  from  whence  flie  came  prior 
to  that,  the  underwriters  were  unqueftionably  liable,  and  he  doubted  not  but 
the  jury  would  find  it  fo,  which  they  accordingly  did. — Hogg  and  Kinlock 
V.  Bogle  and  Scott. 

3.  Case.  If  a  fliip  was  laden  at  Aleppo  and  comes  to  MelTma,  that  fhe 
may  be  infured^  the  adventure  is  to  begin  from  MelTma ;  but  then  it  muft  be 
expreffed :  nay  it  need  not  be  exprelfed  that  fhe  was  laden  at  Aleppo  (though 
the  opinions  of  fome  merchants  was  fo)  as  Pemberton,  C.  J.  faid  : — but  if  the 
infurance  >vas  of  goods  laden  at  Aleppo,  and  they  were  indeed  laden  at 
Melfma,  it  might  make  a  difference. — Skin.  54.  Trin.  34.  Car.  2. — Kames  v. 
Sir  Rob.  Kiiightly  ;  fays  this  was  allowed. 

4.  Case.  If  a  fliip  be  infured  y^-om  the  port  of  London  to  Cadiz,  and, 
before  die  fliip  breaks  ground,  takes  fire  and  is  burnt,  the  alfurers  in  fucli 
cafe  (hall  not  anfwer ;  for  the  adventure  begun  not  till  the  fhip  was  gone 
from  the  port  of  London  : — but  if  the  words  had  been,  at  and  from  the  port 
of  London,  there  they  Avould  upon  fuch  a  misfortune  have  been  made  liable. 

If  fuch  an  affurance  ha,d  been  ma.de  from  London  to  Cadiz,  and  the  fliip 

had  broke  ground,  and  afterwards  been  driven  by  ftorm  to  the  port  of 
London,  and  there  had  taken  fire,  the  infurers  mufl  have  anfwered  ;  for  the 
very  breaking  of  ground  from  the  port  of  London  was  an  inception  of  the 
voyage. — — On  the  odier  hand,  if  a  maij  at  Cadiz  infures  a  fhip  from  thence 
to  London,  if  a  lofs  happens,  the  affurer,  if  he  comes  into  England,  fhall 
anfwer  by  the  common  law  ;  for  though  the  place  where  the  fubfcription  was 
made,  and  the  premium  given,  was  in  a  foreign  country,  yet  that  is  not 
material ;  for  the  aftion  that  is  brought  is  grounded  on  the  promife,  which  is 
tranfitory  and  not  local  ;  and  fo  it  was  adjudged  where  the  defendant  in 
confideration  of  lol.  had  infured,  that  if  the  plaintiff's  (hip  and  goods  did  not 
come  fafe  to  London,  he  would  pay  lool.  Afterwards  the  fhip  was  robbed 
on  the  fea  ;  and  in  an  aftion  brought  for  the  lOol.  the  plaintiff  had  judg- 
ment, notwithffanding  the  robbery  or  lofs  was  on  the  main  fea,  and  the 
fubfcription  out  of  the  realm. — Molloy,  b.  2.  c.  7.  f  9;  cites  7  Hen.  6,  14.  in 
quare  impedit  ;    3^  Hen.  8.  Tit.  107  ;  Mich. 30,  31.  Eliz. 

5.  .Where  the  infurance  for  the  outward-bound  voyage  of  a  (hip,  and 
that  for  it's  return,  are  underwritten  by  two  different  perfons,  the  rifque  and 
obligation  of  the  latter  commences  from  the  day  and  hour  when  the  mafler 
begins  to  take  in  ballaft  or  goods,  though  part  of  the  former  cargo  be  ftill 
remaining  on  board. — Ordin.  of  Stockh.  > 

6.  In  cafe  the  voyage  be  commenced,  and  the  fhip  a  little  while  after 
remams  in  port,  the  affured  cannot  break  up  the  voyage,  or  unload  the  goods, 
to  the  effeft  of  annulling  the  infurance  ;  becaufe  the  infurer  hath  begun  to  run 
a  rifque ;  m  like  manner  as  Jr eight  is  entirely  gained,  when  the  freighter 
unloads  the  goods  during  the  voyage. — 2  Valin's  Comm.  g^. 

7.  See 


i04  COMMODITY. 

7.  See  Africa,  Amjlcrdam,  At  and  From,  Bilboa,  Convoy,  Departure, 
Deviation,  End,  Freight,  Greenland,  Lighter,  Policy,  Premium,  Return, 
Rifquc,  Sea/on,  Voyage, 

COMMISSION. 

See  Interejl,  Inter ejl  or  no  Inter cji,  Profit,  Lofs,  Rifque, 
COMMISSION     OF     MARQUE, 

1.  QEVERITY  of  punifliments  fliall  be  inflifted  on  thofe,  who,  contrary 
^  to  the  meaning  of  the  one  and  twentieth  article,  of  the  treaty  of  peace 
conckided  at  Breda,  (hall  take  commiflion  from  enemies  to  feize  the  fhips  of 
either  ally  or  party,  contrary  to  what  is  provided  in  the  faid  article. — 
Treaty  with  Roll.  1674. 

2.  Severity  of  punilhments  {hall  be  inflifted  upon  ihofe,  who  fhall 
take  commiflion  from  enemies  to  feize  fhips  of  either  ally  or  party. — 
Treaty  xoith  France.  167I-. 

3.  No  fubjeftof  either  king  (hall  afk  or  take  any  commifhon  or  letters  of 
mart  for  arming  any  fhip  or  fhips  to  go  a  privateering  in  America,  whether 
northern  or  fouthern,  from  any  prince  or  flate  with  which  the  other  is  in  war  ; 
and  if  any  perfon  fliall  take  fuch  commifhon  or  letters  of  mart  he  (hall  be 
punifhed  as  a  pirate. — Treaty  with  France.  1686. 

4.  See  Capture,  Colony,  HofliLity,  Letter  of  Marque,  Privateer, 

C     O     M     M     O     D     I     T    Y. 

1.  A^ERCHANTS  may  be  allowed  to  try  their  fls.ill  in  judging  or 
-*-'-*-  conjefturing  about  the  rife  or  fall  of  the  price  of  any  commodity, 
provided  no  prejudice  arife  from  it  to  the  public,  nor  any  frauds  be  committed. 
A  covenant  of  this  nature  may  be  called  a  wager,  rather  than  an  infurance. 
Goods  Avill  preferably  be  fent  to  places  where  trade  is  neither  limited  nor 
cramped.  Some  perfons  may  lofe  by  a  contraft  to  deliver  goods  at  a  fixed 
time  ;  on  the  other  hand,  others  will  be  gainers ;  and  as  fuch  bargains  or 
wagering  mud  draw  the  importation  of  more  goods  than  othersvife  could  be 
expefted,  they  will  always  be  of  advantage  to  the  public :  neverthelefs,  we 
would  obferve  that  no  fuch  gaming  fliould  be  allowed  of,  in  corn,  or  other 
necefiary  provifions ;  as  that  a  premium  fliould  be  given  to  have  fuch  a 
quantity  delivered  at  fuch  a  price  :  nor  fliould  any  forellalling  be  allowed  of, 
as  the  buying  of  Vvool,  or  other  unwrought   materials,  neceflary  for  home 

fabrics  ; 


% 


COMMODITY,  10^ 

fabrics  ;  much  lefs  (houlcl  thefe  commodities  be  permitted  to  be  exported  :  but 
all  trading   cities,    on  the     other  hand,    ought   to  encourage,  as  much    as 

pofTible,  the  importation   of  fuch  goods    as  are   moftly  fent  out  again. 

People  taking  too  great  latitudes,  there  was  a  reftraintlaid  on  thefe  negotiations, 
as  appears  by  a  placart  of  Amfterdam,  the  date  we  cannot  recolleft  :  never- 
thelefs  they  are  ftill  praflifed  there,  though  the  fulfilling  fuch  engagements 
depends  on  the  party's  honour,  as  they  are  not  by  law  bound  to  perform 
their  covenants.  Such  contracts  likewife  were  forbidden  in  1746,  at  Ham- 
burgh.— 1  Mag.  29,  30. 

2.  Amongst  the  great  variety  of  commodities  which  at  different  times 
became  the  fubjefts  of  infurance,  it  may  be  of  fome  ufe  to  fubjoin  the  following 
lifts  of  thofe  which  more  commonly  occur ;  and  to  arrange  them  in  claffes, 
diftinguifliing  the  greater  01  lefs  rifquc,  to  which  they  are  \v!!^\&,o{fca  damage: 
neverthelefs,  as  much  depends  on  the  nature  of  the  package,  Jlowage,  and 
fundry  other  circumftances,  it  is  impoftible  to  form  fuch  claffes  with  accuracy. 

„  ,j^jjClass   1.     Leajl   Hazardous. 

3.  Alabaster,  Beads,  Brafs,  Bricks,  Bugle,  Bullion,  Cane,  Canvas, 
Coals,  Coin  and  Medals,  Copper,  Copperas,  Coral,  Cork,  Cowries,  Culm, 
Deals,  Elephants  Teeth,  Gold  and  Silver  Plate,  Horn  Ware,  Iron,  Lead, 
Liquors  (free  frovi  lofs  or  average  by  leakage,  or  had  cajks)  Logwood, 
Mahogony,  Marble,  Mafts,  Oil,  Ores,  Pewter,  Pitch,  Plank,  Staves,  Stone, 
Tar,  Tiles,  Timber,  Tin,  Wooden  Ware. 

Class    2 .     Common  Hazardous. 

4.  Brushes,  Butter,  Candles,  Cards,  Catlings,  Cattle  (excluding  the 
rifque  of  natural  death)  Chariots,  China,  Coaches,  Cochineal,  Crockery 
Feathers,  Glafs,  Glue,  Hair,  Hats,  Hogs  Briftles,  Hops,  Horfe  Furniture, 
Hofiery,  Houftiold  Furniture,  Kelp,  Leather  Manufaftures,  Lime,  Linens, 
Matts  and  Matting,  Painters  Colours,  Parchment,  Plaifter  of  Paris,  Ouills, 
Rice,  Rofin,  Sedans,  Silks,  Slaves  (vfually  infured" free  from  lofs  or  average 
by  trading  in  boats,  and  from  infurreElion  under  5,  and  fometimes  under  10  per 
cent.")  Soap,  Tallow,  Tarras,  Tobacco  Pipes,  Tortoifeftiell,  Toys,  Vellum, 
Vermicelli,  Wax,  Wearing-Apparel,  Whalebone,  Woollens,  Yarn. 

Class.  3.     More  Hazardous. 

5.  Flax,  Hemp,  Hides,  Skins,  Sugar,  Tobacco  (thefe  fix  articles,  by 
the  N.  B.  at  the  foot  of  the  policy,  are  "  free  from  average  under  5  per  cent, 
unlcfs  general  or  the  flip  befranded  :  " — but  hides  are  now  ufually  infured  with 
a  claufe  to  h&"  free  from  average,  unlefs  general,  and  except  the  charges  of 

zoa/liing  and    drying    if  damaged    by   fea-water"). Barilla,   Brimftone, 

Books,  Clock  and  Watch- Work,  Cotton  Wool,  Drugs,  Grocery  and  Spices  in 

D  d  general, 


io6  COMMODITY. 

general,  Gums,  Indico,  Laces,  Madder  Roots,  Maps  Charts  and  Engravings, 
Nails,  Needles,  Orcheal,  Paper,  Piftures,  Powder,  Rags,  Salt-Petre,  Shu- 
mack-,  Skins  (if  not  packed  in  cajks)  Smalts,  Wool. 

Class  4.     Mojl  hazardous. 

6.  Corn,  Fifh,  Flour,    Fruit,  Salt,  Seed  (but  thefe  fix  articles,  by  the 
N.  B.  at   the  foot  of  the  policy,    are  "  free  from  average,  unlefs  general, 

or  thefiipbeflranded"). Beans,  Bifcuit,  Bread,  Grain,  Malt,  Meal,  Peafe, 

Starch     (thefe   articles,  as  retaining  the  nature  of  corn  and  flour,  are   alfo 

deemed  free  of  average,   as  above). Alum,  Aflies,  Brimftone,  Cheefe,  un- 

tarred  Cordage,  Gold  and  Silver  Thread  Lace,  Hardware  and  Cutlery,  Hay, 
Potatoes,  Provifions,  Salt-Petre,  Straw  (thefe  ought  to  be  free  of  average 
as  above,  as  being  of  a  perifiablc  nature). 

7.  Notwithstanding  there  is,  unqueflionably,  great  difference  in  the 
rifque  of  damage  and  average,  arifing  from  the  difference  in  the  very  nature 
of  the  feveral  commodities  enumerated  in  the  foregoing  claffes ;  yet  it  may 
very  often  be  obferved,  that  not  only  no  difference  of  premium  is  given,  or 
required,  according  to  the  commodity ;  but  the  generality  of  underwriters 
feldom  even  enquire  lohat  kind  of  goods  are  meant  to  be  infured  ?  however 
the  judicious  know  by  experience,  the  importance  6f  this  que ftion  ;  and  when 
a  true  anfwer  can  be  obtained,  regulate  themfelves  accordingly  in  regard  to 
the  premium,  or  refufing  to  underwrite  the  policy. — In  time  of  peace,  it  is  a 
very  common,  and  often  a  jufl  remark,  that  "the  ZLxnonnX.  o^  l\\e  averages  or 
partial  lolfes   is  greater  than  that  of  the  total  loffes." 

8.  In  refpeft  of  the  different  natures  of  commodities,  confideration  is  due, 

not  only  as  they  are  in  thevifelves  more  or  lefs  fubjeft  to  damage,  but  as  they 

are  alfo  liable  to  caufe  damage  to  eachothn-:  when  this  is  the  cafe,  allrift  enquiry 

fliould  be  made  as  to  their  j(5flC;^(7^^,   and  e'i^ecvdSS.y  \\\e\x fioxoage  ;   which  may 

fometimes  be  even    fraudulently   made  : — for,   it   has  often  happened  that, 

without  any  accident  at   fea,   heavy   averages,  owing   to  bad  package  and 

ftowage  only,  have  been  demanded,  and  paid  by  infurers  :   and  it  is  a  queftion 

■worthy  of  attention,  whether  fuch  averages  (on  goods  damaging  each  other) 

come  within  the  conflruftion  of  the  indemnity  intended  by  an  infurance  ? — 

and  whether  the  lofs  or  damage  occafioned  to  one  commodity  by  another, 

(even  if  unavoidable,  and  not  arifing  from  the  flowage)  ought  not  in  equity  to 

be  borne   (if  to  be  borne  at   all  by  infurers)   equally,  or   in  a  reafonable 

proportion,  by  both  ;  in  like  manner  as  when  (hips  run  foul  of  each  other  : — 

(fee  Running  Foul) : — for,  why  fhould  a  proprietor,   or  infurer,  of  one  kind 

of  merchandife,  very  little  hazardous,  and  properly  and   carefully  packed, 

fhipped,  and  flowed,  fuffer   a   great,  perhaps  a  total  lofs,  occafioned   to   it 

merely  by  another,   which  is  not  only  in  it's  nature  dangerous  ;  but  has  alfoj, 

it  may  be,  been  packed,  or  flowed  in  fuch  a  manner,  as  that  the  mifchief  to 

the  former  was  from  the  mere  ufual  motion  of,   and  water  made  by,  the 

vefl'el. 


C    O    M    'M    U    N    I    T    Y.  107 

f  -  * 
veflTel,   certain   and  inevitable.^ For   inflance,     water'  pafTing   from   coals 

fhipped  in  bulk ;  from  copperas  ;  the  leakage  from  liquors,  as  aqua-fortis, 
&;c.  ;  the  melting  of  butter,  tallozo,  &c.  have  often  caufed  great  damage  to 
corn,  hemp,  and  other  goods  in  the  fame  fhip. — When  the  hurt  arifes  evi- 
dently from  xhtjlowage,  and  might  otherwife  have  been  avoided,  the  mafler 
ought  unquellionably  to  make  the  indemnification,  not  the  infurers  ;  yet,  I 
have  known  confiderable  averages  paid  by  them  on  fuch  occafions. 

9.  For  the  reafons  above  intimated,  it  would  be  proper  ifl  all  cafes  where 
it  may  be  prafticable,  and  that  the  kind  of  goods,  or  the  principal  part  of 
them,  intended  to  be  infured  are  known  to  the  infured,  to  have  them 
mentioned  fpecifically  in  the  policy  : — and  a  difference  of  premiums  ought 
always  to  be  made,  according  to  the  different  nature  6f  the  commodity  ; 
for  it  is  furely  very  abfurd  to  make  no  diflinftiort.^-Alfureds  and  brokers 
will  however  frequently  make  a  diftinftion  of  underwriters,  in  allotting  the 
leafl  hazardous  commodity  to  their  favourites,  or  to  the  cautious ;  and  the 
more  hazardous  to  the  incautious  and  indolent. 

10.  See  Accident,  Average,  Bargain,  Cattle,  Corn,  Damage,  Event, 
Goods,  Interejl,  Perijhable-Commodities,  Stocks,  Stowage,  Stranded,  Unlefs, 
Wager, 


COMMUNITY, 

1.  T  TPON  the  goods  contrafted  for  being  brought  to  the  fhip,  in  a  lighter, 

>-^    barge,  &c.  the  community  betwixt  fuch  goods  and  the  fliip,  and  fuch 

goods  as  were  already  on  board,  commences  from  the  time  of  their  being 

Ihipped  in  barges. — \_N.  B.  This  is  not  confonant  with  any  other  ordinancer\ 

This  conneftion  befwixt  the  fliip  and  cargo  is  in  force  whilft  they  remain 

together,  but  ceafes  upon  the  goods  being  landed  at  the  appointed  port,  out 
of  the  (liip,  or  the  lighters,  or  boats  belonging  to  it ;  and  every  part  of  the 
goods  when  brought  aflrore  in  a  proper  place,  is  immediately  clear  of  the 
conneftion  ;  fo  that  it  has  nothing  to  claim  from  the  other  goods  or  fiiip,  for 
any  fubfequent  damages  happening  to  it,  and  likewife  contributes  nothing  to 

any  that  may  afterwards  happen  to  them. The  connexion  betwixt  (hip 

and  cargo  likewife  ceafes  when,  after  any  average-damages,  fhe  happens  to  be 

loft,  by  misfortunes  merely  accidental,  or  fails  to  another  place. But  if  the 

mafter,  for  faving  the  cargo,  and  preventing  greater  damage,  fliall,  after  the 
ufual  confultation,  dejignedly  run  the  Jhip  ajhore,  and  thereby  the  cargo  is 
faved,  but  the  fhip  utterly  lofl  and  beaten  to  pieces,  the  average-conneflion 

fliall  remain  good,  and  the  goods  thus  faved  contribute  to  the  fliip. Should 

the  fliip  remain  whole,  the  mafter  is,  without  delay,  to  ufe  the  beft  means  for 
getting  it  afloat  again  ;  but  if  this  fhould  not  be  compalfcd  within  two 
months,  the  connexion  ceafes,  and  the  goods  are  no  longer  bound  to  contri- 
bute to  the  damages  of  the  fliip,  unlefs  the  mafter,  for  weighty  confiderations, 

has 


io8  COMPANY. 

has  afked  and  obtained  from  proper  perfons  a  prolongation  of  that  term. — 
Ordin.  of  Konigjb. 

2.     See  Contribution,  General  Average,  Pilaw. 

COMPANY. 

1.  TN  the  year  1720,  the  two  companies  of  afTurance,  that  of  the  Royal- 
-*-  Exchange  Afurance  headed  by  the  Lord  Onflow,  and  that  of  the 
London  AJJurance  by  the  Lord  Chetwynd,  firft  had  their  eftabhfhment. — . 
Thofe  who  projefted  them  had  been  very  induflrious  to  befpeak  the  counte- 
nance of  the  houfe,  of  commons ;  for  which  they  had  caufed  two  letters  to 
be;  printed,  and  given  to  the  members :  but  thefe  and  all  other  folicitations 
having  proved  inefleftual,  the  managers  for  the  two  companies  had  recourfe 
to  <?ther  expedients ;  and  underflanding  that  the  civil  Itjl  was  confiderably  in 
arrear  (for  which  no  provifion  had  been,  or  could  conveniently  be  made  by 
the  parliament,  becaufe  the  grand  com rpittee  of  fupply  had  been  inadvertently 
difmiffed)  they  offered  to  the  minifl.ry  6oo,oool.  towards  the  difcharge  of  that 
debt,  in  cafe  they  might  obtain  the   Kings  charter,  with  the  parliamentary 

fanftion  for  the  efliablifliment  of  their  refpe6live  companies. The  miniftry 

being  at  a  lofs  for  means  to  pay  the  civil  lift  debt,  readily  embraced  the 
offer;  and  Mr.  Craiggs  having  the  day  before  prepared  the  leading  members 
of  the  houfe  of  commons,  Mr.  Aiflabie  prefented.  May  the  4th,  to  the  houfe, 

the    following   mefTage. "  His   Majefty  having  received  feveral  petitions 

"  from  great  numbers  of  the  moft  eminent  merchants  of  the  city  of  London, 
*'  humbly  praying,  that  he  would  be  gracioufly  pleafed  to  grant  them  letters 
"  patent  for  erecting  corporations  to  alfure  fhips  and  merchandife  ;  and  the 
*'  faid  merchants  having  offered  to  advance  and  pay  a  confiderable  fum  of 
"  money  for  his  Majefty's  ufe,  in  cafe  they  may  obtain  letters  patent  accord- 
"  ingly  :  his  Majefty  being  of  opinion,  that  creeling  two  fuch  corporations, 
"  exclufive  only  of  all  other  corporations  and  focieties  for  afluring  of  fliips 
"  and  merchandifes,  under  proper  reftriftions  and  regulations,  may  be  of 
"  great  advantage  and  fecurity  to  the  trade  and  commerce  of  the  kingdom,  is 
"  willing  and  defirous  to  be  ftrengthened  by  the  advice  and  afliftance  of  this 
"  houfe  in  matters  of  this  nature  and  importance.  He  therefore  hopes  for 
*'  their  ready  concurrence,  to  fecure  and  confirm  the  privileges  his  Majeffv 
"  fliall  grant  to  fuch  corporations,  and  to  enable  him  to  difcharge  the  debts  of 
"  his  civil  government,  without  burdening  his  people  with  any  new  aid  or 

*'  fupply.  " Purfuant  to  the  meffage,  a  bill  was  brought  in  to  enable  his 

Majefty  to  grant  letters  of  incorporation  to  the  two  companies : — fo  that 

2.  By  Stat.  6  Geo.  1.  c.  18. — His  Majefty  was  impowered  to  grant  two 
charters  for  afturance  of  fliips  and  merchandife,  &c.  and  to  incorporate  the 
adventurers,  in  confideration  of  the  before-mentioned  fum  of  money  by  them 

to  be  advanced: S.  1.  It  fliall  be  lawful  for  his  Majefty,  by  two  charters, 

to 


II 


COMPANY. 


J  09 


to  grant  fuch  perfons  who  fliall  be  named  tlierein,  and  admitted  as  members 
into  the  faid  corporations,  (hall  be  each  a  feparate  body,  politic  and  corporate, 
for  the  affurance  of  fliips  and  merchandifes,  at  fea,  or  going  to  fea,  or  for 
lending  money  upon  bottomry  : — and  the  faid  corporations  fliall  have  power 
to  chufe  their  governors,  direflors,  and  other  officers  ;  and  the  governors 
and  direftors  fliall  continue  in  their  office  for  three  years,  and,  in  cafe  of 
death  or  removal,  be  fupplied  as  fliall  be  prefcribed  in  the  charters ;  and 
each  of  the  faid  corporations  Ihall  be  capable  by  law  to  purchafe  lands  not 

exceeding  i,oool.  per  annum. S.  4.  Each  of  the  two  corporations  ffiall  be 

obliged  to  caufe  fuch  fliock  of  ready-money  to  be  provided,  as  fliall  be  fuffi- 
cient  to  anfwer  all  juft  demands  for  loffes,  and  ffiall  fatisfy  all  fuch  demands  ; 
and  in  cafe  of  refufal  or  negleft,  the  parties  aflured  may  bring  aciion  of 
debt,  &c.  in  any  of  his  Majefl:y's  courts  of  record  at  Weftminller,  in  which 
the  plaintiffs  may  declare,  that  the  fame  corporation  is   indebted  to  them  in 

the  monies  demanded,  and  have  not  paid  the  fame  according  to  this  aft. . 

S.  5.  To  the  end  that  the  fum  of  300,000!.  may  be  raifed  by  each  of  the  faid 
companies,  and  duly  paid  into  the  exchequer  towards  the  difcharge  of  the 
civil  lift  debt  (in  confideration  of  the  advantage  that  will  refult  to  the  refpec- 
tive  companies  from  their  charters)  and  that  fufficient  provifion  of  money  may 
be  made  for  anfwering  juft  demands,  and  that  the  corporations  may  be  enabled 
to  lend  money  on  bottomry,  or  to  advance  money  on  parliamentary  fecurity, 
each  of  the  faid  companies  ffiall  be  obliged,  by  virtue  of  this  aft,  and  of  the 
refpeftive  charters,  to  raife  fuch  fum  of  money,  as  his  Majefty  fliall  therein 
direft,  not  exceeding  1,500,0001.  within  fuch  time,  and  in  fuch  proportions  and 

manner,  as  by  the  faid  charters  ffiall  be  appointed. S.  6.  The  corporations, 

in  general  courts,  may  raife  fuch  capital  flocks,  either  by  taking  fubfcriptions 
of  particular  perfons,  or  by  calls  of  money  from  their  members,  or  by  fuch 
other  ways  as  to  fuch  general  courts  fliall  feem  expedient ;  and  all  fubfcribers 
fliall  have  a  fliare  in  the  capital  ftock,  and  fliall  be  admitted  members  ;  but  no 
perfon  ffiall  be  entitled  to  any  greater  fliare  in  the  ftock,  than  the  money 

which  they  ffiall  have  paid. S.  7.  The  corporations  fliall  have  power,  in 

their  general  courts,  to  call  in  from  their  members  any  further  funis,  as  fliall 
be  adjudged  neceffary ;  and,  in  cafe  any  member  ffiall  refufe  to  pay  his  fliare 
at  the  times  appointed  by  notice  in  the  Gazette  and  upon  the  Royal-Exchange, 
the  corporation  may  not  only  flop  the  dividends  payable  to  fuch  member,  but 
alfo  flop  the  transfers  of  the  fliares  of  fuch  defaulter,  and  charge  him  with 
intereft  at  eight  per  cent,  per  ann. — and,  if  the  principal  and  intereft  fliall  be 
unpaid  three  months,  the  corporations,  or  their  courts  of  direftors,  may 
authorife  perfons  to  fell  fo  much  of  the  ftock  of  fuch  defaulter,  as  will  fatisfy 
the  fame  ;  and  the  money  fo  called  in  ffiall  be  deemed  capital  ftock  : — never- 
thelefs,  the  corporations  in  a  general  court  may  caufe  any  fums  called  in  to 
be  divided  amongft  the  then  members,   and  the  fliares  in  the  capital  fliall  be 

proportionably  abated. S.  8.  For  enabling  the  corporation  to  lend  money 

on  parliamentary  fecurities,  they  fliall  have  power  to  borrow  money  upon 
bonds,  under  their  common  feal,  at  fuch  intereft,  for  any  time  not  lefs  than 
fix  9ionths,  as  they  fhall  think  fit,  fo  as  the  principal  ffiall  not  exceed  the 

E  e  principal 


no 


C    O    M     P    A    N    Y. 


principal  monies  then  owing  to  them  on  inch  parliamentary  feciuntics ;    and 

fuch  bonds  fliall  not  be  chargeable  with  {lamp  duties. S.  9.  T\\tjharcs  in 

the  capital Jlock  (liall  be  transferable  and  divifible ;  and  their  bonds  fiiall  be 
affignable  and  recoverable,  as  his  Majefty  by  the  charters  (hall  prefcribe  ;  and 
the  capital  (lock  fliall  be  adjudged  a  pedbnal,  and  not  a  real  ellate,   and  fhall 

go  to  the  executors,  and  not  to  the  heir. S.  10.  The  flock  fliall  be  exempted 

from  taxes,  and  no  governor,  direclor,  or  other  officer  of  the  corporations, 
fhall  for  that  caufe  be  difabled  from  being  a  member  of  parliament,  nor  in 
refpeft  of  fuch  fhare  be  liable  to  be  a  bankrupt ;  ,and  no  flock  in  the  corpo- 
rations fhall  be  fubjeft  to  foreign  attachment  by  the  cuflom   of  London,  or 

otherwife. -S.  11.  His  Majefty,  by  the   faid  charters,  may  grant  to  each 

of  the  corporations  power  to  make  by-laxvs,  and  fuch  further  powers  relating 
to  the  afiurance  o^Jhips,  &c.  or  lending  money  upon  bottomry,  as  to  him  fliall 

feem  meet. S.  12.  All  other  corporations,  and  aW  partncrjhips  for  affuring 

fliips  or  merchandifes  at  fea,  or  for  lending  money  upon  bottomry,  fhall  be 
reflrained  from  underwriting  any  policies,  or  making  any  contrafts  for 
affurance  of  Ihips  or  merchandifes  at  fea,  or  going  to  fea,  and  from  lending 
money  by  way  of  bottomry ;  and  if  any  corporation,  or  perfons  afting  in 
fuch  partnerfhip  (other  than  one  of  the  two  corporations  to  be  eflablifhed) 
(hall  underwrite  any  fuch  policy,  or  make  fuch  contra6l  for  affurance  of  fliips, 
&c.  or  agree  to  take  any  premium  for  fuch  policies,  every  fuch  policy  fhall 
be  void,  and  every  fum  fo  underwritten  fliall  be  forfeited,  and  may  be  reco- 
Tered,  one  moiety  to  the  ufe  of  the  crown,  the  other  to  the  perfon  who  fliall 
fue  for  the  fame  in  any  court  of  record  at  Weflminfter.  And  if  any  corpo- 
ration, or  perfons  afting  in  fuch  partnerfhip,  agree  to  lend  money  by  way 
of  bottomry  contrary  to  this  acl,  the  fecurity  fhall  be  void,  and  fuch  agree- 
ment fhall  be  adjudged  an  ufurious  contraft :  neverthelefs,  any  particular 
perfon Jhall  be  at  liberty  to  ihJidenurite  policies,  or  r)iay  lend  money  by  xoay  of 
bottomry,  Jo  as  the  fame  be  not  on  the  account  or  rfque  of  a  corporation,  or  of 

perfons  aEling  in  partaerfiip. S.  13.  If  any  perfon  fliall /o7-^<?  the  common 

fcal  of  either  of  the  corporations,  counterfeit  or  alter  any  policy  or  obligation 
imder  the  common  feal,  or  fliall  offer  to  difpofe  of,  or  pay  away,  any  fuch 
counterfeited  or  altered  policy,  &c.  knowing  the  fame  to  be  fuch,  or  fhall 
<lemand  the  money  therein  contained,  of  either  of  the  corporations,  knowing 
fuch  policy,  &c.  to  be  counterfeited,  &c.  with  intent  to  defraud  the  corpo- 
ration, or  any  other  perfon,  fuch  offender,  being  convifted,  fhall  be  guilty  of 

felony,  without  iDenetit  of  clergy. S.  14.  No  perfon  fliall  be  capable  of 

being  elefted  governor,  fub-governor,  deputy-governor,  or  direftor  of  either 
of  the  faid  corporations,  during  the  time  he  fliall  be  governor,  &c.  of  the 
otlier  corporation  ;  and,  if  any  governor,  &c.  or  member  of  either  of  the  faid 
corporations,  having  any  fliare  in  the  capital  flock  of  that  corporation,  fhall 
in  his  own  name,  or  in  the  name  of  any  other,  purchafe  any  fliare  in  the  flock 
of  the  other  corporation,  the  fliare  fo  purchafed  fhall  be  forfeited  ;  one  moiety 
'to  the  ufe  of  his  majefty,  the  other  to  the  profecutor,  to  be  recovered  as 

before  mentioned. S.  15.  Upon  three  years  notice  to  be  printed  in  the 

Gazette,  and  affixed  upon  the  Royal-E^cchange,  by  authority  of  parliament, 

at 


I 


e    O    M     P    A    N    y.  jij 

at  any  time  within  thirty-one  years,  to  be  reckoned  from  the  dates  of  the  two 
charters,  and  upon  payment  by  parhament  to  the  corporations  of  the  fums  of 
300,000!.  Avhich  the  corporations  were  to  pay  to  his  Majelly,  witliout  intereft, 
the  corporations  fliall  ceafe ;  and  any  vote  of  the  houfe  of  commons,  fignified 
by  the  fpeaker  in  writing,  to  be   inferted  in   the  Gazette,  and  affixed  on  the 

Royal-Exchange,  fhall  be  deemed  fufficient  notice. S.  16.  If,  after  the 

expiration  of  diirty-one  years,  his  Majefly  fhall  judge  the  further  continuance 
of  the  faid  corporations  to  be  hurtful  to  the  public,  it  fliall  be  lawful,  by  letters 
patent  under  the  great  feal,  to  make  void  the  fame  corporations ;  and  the  fame 

{hall  become  void  accordingly,  widiout  any  inquifition,  fcire  facias,  &c. 

S.  17.  In  cafe  the  corporations  ftiall  be  redeemed  within  thirty-one  years,  or 
be  revoked  by  letters  patent  after  thirty-one  years,   the  fame  corporations,  or 

any  corporation,   with   like   powers,  &c.  fliall  not  be  grantable  again. 

S.  18  to  25,   not  material. S.  26.    It   (hall  be  lawful    for  the    South-Sea 

company,  and  for  the  Eajl-India  company,  to  lend  on  the  bottom  of  any  fiiip, 
and  on  the  goods  on  board  any  fliip  in  the  fervice  of  the  faid  companies 
refpeftively,  to  any  captains,  or  other  perfons  employed  in  the  fendce  of  the 

companies,  any  money  by  way  of  bottomry,   this   aft  notwithfl:anding. 

S.  27,  28,  not  material. S.  29.  If  any  governor,  or  member  of  either  of 

the  corporations,  fliall,  on  account  of  the  faid  corporations,  lend  to  his  Majefl.y 
money  by  way  of  loan,  or  anticipation  on  any  part  of  the  revenues,  other 
than  fuch  funds  on  which  a  credit  of  loan  fliall  be  granted  by  parliament,  the 
faid  governor,  &c.  or  other  members  confenting  to  fuch  loan,  being  convi6led 
thereof,  fliall  forfeit  treble  the  value  of  the  fums  fo  lent;  one  fifth  part  to  the 
informer,  to  be  recovered  in  any  court  of  record  at  Weflminfter,  by  aftion  of 
debt,  &.C.  and  the  refidue  to  be  difpofed  of  to  public  ufes,  as  fliall  be  direfted 
by  parliament. 

3.  By  Stat.  7  Geo.  1.  c.  27.  f.  26. — The  corporation  called  the  Londo?:- 
AJfurance,  having  paid  into  the  exchequer  111,2501.  in  part  of  300,000!.  and 
having  covenanted  to  pay  38,7501.  the  further  part  thereof  in  three  months  ; 
and  the  corporation  called  the  Royal- Exchange  Affkrance,  having  done  the 
like,  the  refidue  of  the  faid  fums,  amounting  together  to  300,0001.  fliall 
be  releafed. 

4.  By  Stat.  8  Geo.  1.  c.  15.  f.  25. — Where  the  Royal-Exchange-AJfurance 
and  the  London- AJfurance  are  fubjefted  to  pay  double  damages  befides  cofts, 
the  plaintiffs  fliall  recover  againfl  them  only  Angle  damages  and  cofts. 

5.  By  Stat.  11  Geo.  1.  c  30.  f  43. — On  all  aftions  of  debt  againft  either 
of  the  corporations,  called  the  Royal-Exchange-AJfurance  and  the  London- 
AJfuraJice,  upon  any  policies  under  the  common  feal,  for  the  affuring  of  any 
Ihip  or  merchandifes  at  fea,  or  going  to  fea,  it  fliall  be  lawful  for  the  faid 
corporations  to  plead  generally,  that  they  owe  nothing  to  the  plaintiff;  and  in 
all  aftions  of  covenant  againft  either  of  the  faid  corporations  upon  any  policy 
under  the  common  feal  for  the  affuring  any  fliip  or  merchandifes  at  fea,  or 

going 


112 


C    O    M     P    A    N    Y. 


going  to  fca,  it  fliall  be  lawful  for  each  of  the  corporations  to  plead  generally, 
that  thev  have  not  broke  the  covenant  in  fuch  policy  contained ;  and,  if 
thereupon  ifTue  be  joined,  it  fhall  be  lawful  for  the  jury  to  give  fuch  part  only 
of  thefum  demanded,  if  it  be  aftion  of  debt,  or  fo  much  in  damage,  if  it  be  an 
aftion  of  covenant,  as  it  Ihall  appear  upon  the  evidence,  that  the    plaintiflT 

ought  injuflicc  to  have. S.  44.  When  any  vedel  or  merchandifes  (hall  be 

infured,  z. policy  iluXy  /lamped  ftiall  be  ifl'ued  or  made  out,  within  three  days  at 
furthefl ;  and  the  ivfurer,  neglefting  to  make  out  fuch  policy,  '^■AXforJeit  lool. 
to  be  recovered  and  divided  as  other  penalties  may  be,  by  the  laws  relating  to 
the  ftamp  duties  ;  and  all  promijjbry  notes  for  allurances  of  fhips  or  merchan- 
difes at  fea,  or  going  to  fea,  are  declared  void. 

6.  Remarks. — It  is  well  known  that  each  of  thefe  companies  raifed  about 
450,0001.  the  Zo7iJo^  being  compofed  of  36,000  (hares  at  1 241.  and  the  Royal 
of  4,500  fiiares  at  lOol.  each:  fo  that  after  having  paid  to  the  government 
each  150,0001.  for  their  charter,  they  remained  with  a  capital  of  about 
300,0001.  each,  under  the  care  of  their  direftors,  to  be  difpofed  of  for  the 
benefit  of  the  proprietors :  which  fums  they  have  kept  employed  ever  fince  in 
loans  to  the  government,  and  upon  private  pledges,  fo  as  to  enable  them  to 
make  certain  yearly  dividends,  and  to  be  always  ready  to  fatisfy  the  demands 
of  any  perfons  who  make  infurances  with  them,  whenever  the  premiums 
which  they  have  gained  are  infufficient  to  do  it : — and  as  the  a6l  gives  them 
leave  to  raife  in  the  whole  1,500,0001.  each,  which  is  1,050,000!.  more  for  each 
company ;    all  this  together  makes  a  good  fecurity   for  what  infurances  are 

made  with  them. By  the  price  which  the  fhares  of  each  company  bear  at 

market  we  may  judge  what  opinion  the  publick  has  of  the  value  of  their  flock. 
This  price,  however,  will  always  be  chiefly  regulated  by  the  market  price  of  the 
other  flocks,  and  by  the  advantage  or  interefl  which  the  government  fecurities 
afford  comparatively  with  the  dividends  which  thefe  companies  make : — at  pre- 
fent  the  London-Aflurance  company  makes  a  dividend  of  12s.  per  fliare,  which 
on  it's  original  value  of  12I.  10s.  is  4I.  16s.  percent. :  and,  notwithftanding  the 
high  terms  at  which  government  raifes  money  during  the  prefent  war,  this  com- 
pany's fliares  even  now  fell  at  about  ii-gl.  each,  which  produces  full  5  per  cent. 

to   the    purchafers. The   other  company    makes    a  dividend    of  4I.  per 

cent,  on  their  capital ;  and  their  fliares  fell  at  about  76I.  each. The  capital  of 

450,000!.  in  hand,  received  from  the  proprietors,  and  a  power  to  call  for 
1,050,000!.  more,  with  all  the  premiums  not  run  oft  (which  in  courfe  muft  be 
kept  back)  is  a  fund  much  fuperior  to  what  any  eftablifliment  of  this  nature  in 
neighbouring  flates  has  afforded,  or  is  likely  to  afford. — Nor  can  it  be  expeft- 
ed  that  any  company  abroad  ffiould  meet  with  a  fuccefs  even  equal  to  that 
which  thefe  companies  have  had ;  or  that  it  would  be  worth  the  while  for 

any  new  one  at  home  to  give  more  than  150,000!.  for  a  charter. Hence  if 

no  very  extraordinary  events  happen,  and  the  fame  good  management  is  kept 
up,  thefe  may  flill  be  companies  of  long  ftanding,  beneficial  to  their  propri- 
etors, and  yet  more  fo  to  the  trade  of  England  in  general ;  for  which  it  is 
certainly  much  better  to  have  tv^o  fuch  capital  offices,  than  one  ;  befides  the 

great 


CONCEALMENT.  113 

great  number  of  fubflantial  private  perfons  that  are  to  be  found  in  London  to 
infure  with. 

7.  In  France,  befides  the  feveral  companies,  or  chambers  of  in/urance, 
tliere  is  another  form  of  fociety  more  common,  which  may  be  caWedfociete  en 
commendite,  as  having  a  fund  compofed  of  a  fixed  number  of  aclions  of  a 
certain  value,  which  are  paid  for  in  ready  money  by  the  purchafers  of  them  : — 
fometimes  no  money  is  depofited,  efpecially  in  tlie  maritime  places,  where  the 
purchafers  of  the  aftions,  whofe  faculties  are  known,  become  jointly  obligated 

for  each  other. — Dicl.  du  Citoyen. There  are  alfo  in  Paris  and  feveral  other 

places  in  France  fecret  partnerfliips  for  afllirance,  called  focictes  anonimes. 
— 2  Valins  Comm.  i^^. 

8.  See  Bottomry,  Chamber  of  AJfurance,  Fire,  Lives,  London- Affurance- 
Company,  Policy,  Royal-Exchange  Affurance-Company,  Society. 


CONCEALMENT. 

1.  /CONCEALMENT  of  circumftances,  in  matters  of  infurance,  efpecially 
^— ^  in  time  of  war,  is  fo  conftantly  pra6lifed  ;  the  temptations  to  it  are 
fo  great ;  and  the  impofitions,  indeed  the  robberies,  to  which  infurers,  in 
England,  are  thereby  daily  fubjeft,  are  fo  various  and  enormous,  that  I 
venture  to  fay  that,  without  the  eftablifliment  of  fome  fuch  methods  of  pre- 
vention, deteftion,  and  punifhment,  as  have  been  intimated  in  the  Prelim. 
Difc.  p.  20  and  ^n^,  "  the  condition  of  an  infurer  of  the  city  of  London  will 
become,  notwithflanding  his  utmoll  fkill,  prudence,  and  precaution,  beyond 
meafure  perilous  and  remedilefs  ;" — for,  the  manner  of  proceeding  with  refpeft 
to  thefe  affairs,  by  courfe  of  law,  inflead  of  affording  redrefs,  only  tends,  on 
the  whole,  to  promote  the  praftice  of  deceit  and  fraud,  as  hath  been  fufficiently 
(hewn  in  the  faid  difcourfe,  p.  15  to  20,  and  other  parts  thereof. 

2.  By  the  date  inferted  on  underwriting  a  policy  compared  with  the  dates 
of  letters,  fafts,  and  events  which  happen  afterwards,  and  muff:  be  proved,  it 
will  appear  whether  there  is  any  reafon  to  fufpeft  that  the  infured  knew  or  has 
concealed  any  circumftance  which  he  ought  to  have  difcovered  to  the  infurers  : 
— for,  if  he  has  not,  all  infurances  not  prohibited  by  law  hold  good  in  England, 
notwithflanding  the  arrival,  orlofs  of  the  fliip,  at  the  time  of  making  them  : — 
and  there  are  many  inftances  of  ffiips  being  arrived  in  the  river  Thames,  and 
even  advice  of  their  arrival  received  by  other  people  in  London,  at  the  time 
the  policy  was  underwritten,  without  the  infurers  being  obliged  to  return  the 
premium  :  on  the  other  hand  they  muft  pay  a  lofs,  if  they  cannot  prove  the 
infured  knew  of  it,  or  had  reafon  to  believe  it,  which  he  did  not  communicate 
to  them. What  follows  will  fully  explain  the  nature  and  effeB  of  conceal- 
ment in  contrafts  of  infurance. 

F  f  3.     Case. 


114  C    O    N    C    E     A    L     M    E     N    T. 

3.  Case. — I.  S.  having  a  doubtful  account  of  his  fl^ip  that  was  at  fea,  viz. 
thatafhip,  defcribed /^^^  his,  was  taken,  infured  her  without  any  information 
to  the  infurers  of  what  he  had  heard,  either  as  to  the  hazard  or  circumftances, 
which  might  induce  him  to  believe  that  his  fhip  was  in  great  danger,  if  not 
a6Kially  loft. — The  infurers  bring  a  bill  for  an  injunftion  and  to  be  relieved  : — 
and  Lord  Macclesfield  decreed  the  policy  to  be  delivered  up  with  cofts,  but 
the  premium  to  be  paid  back  and  allowed  out  of  the  colls :  and  his  lordfhip 
faid,  that  the  infured  has  not  dealt  fairly  with  the  infurers  ;  that  he  ought  to 
have  di/clofecl  to  them  what  intelligence  he  had  of  the  fhip's  being  in  danger, 
and  which  might  induce  at  leaft  lo  fear  that  it  was  loft,  though  he  had  no 
certain  account ;  for  if  this  had  been  difcovered,  it  is  impoflible  to  think, 
that  the  infurers  would  have  infured  the  fhip  at  fo  fmall  a  premium  as  they 
have  done  ;  but  either  would  not  have  infured  it  at  all,  or  would  have  infifted 
on  a  larger  premium  ;  fo  that  the  concealment  of  this  intelligence  is  a  fraud. — 
2  Ec]u.  Abr.  635.     Trin.  1723. — 2  P.  Will.  170. — Daeofla  v.  Scanderet. 

4.  Case. — On  the  25th  of  Auguft  1740,  the  defendant  underwrote  a  policy 
from  Carolina  to  Holland.  It  appeared  that  the  agent  for  the  plaintiff  had  on  the 
23d  of  Auguft  received  a  letter  from  Cowes,  dated  the  2  ift  of  Auguft  wherein  it 
was  faid,  "  the  1 2th  of  this  month  I  was  in  company  with  the  fhip  Davey  (the 
"  (liip  in  queftion)  at  twelve  in  the  night  lofl;  fight  of  her  all  at  once  ;  the 
"  captain  fpoke  to  me  the  day  before  that  he  was  leaky,  and  the  next  day  we 
"  had  a  hard  gale." — The  fhip,  however,  continued  her  voyage  till  the  19th 
of  Auguft,  Avhen  fhe  was  taken  by  the  Spaniards ;  and  there  was  no  pretence 
of  any  knowledge  of  the  aftual  lofs  at  the  time  of  the  infurance,  but  it  was 
made  in  confequence  of  a  letter  reeeived'that  day   from  the  plaintiff  abroad, 

dated  the  27th  of  June  before. Several  brokers  were  examined,  who  proved 

that  the  agent  ought  to  have  difclofe d  \\\&  Itxx^r -,  for  either  the  defendant 
would  not  have  underwrote,  or  would  have  infifted  on  a  higher  premium. — . 
And  the  C.  J.  was  of  that  opinion  ;  and  declared,  that  as  thefe  are  contrafts 
on  chance,  each  party  ought  to  know  all  the  circumfiances :  and  he  thought 
it  not  material  that  the  lofs  was  not  fuch  an  one  as  the  letter  imported  ;  fgr 
thofe  things  are  to  be  confidered  in  the  fituation  of  them  at  the  time  of  the 
contrail,  and  not  to  be  judged  of  by  fubfequent  events:  he  therefore  thought 
it  a  ftrong  cafe  for  the  defendant,  and  the  jury  found  accordingly.— '<S/?-^w. 
1183.  16  Geo.  2. — Seaman  \.  Fonnereau. 

5.  Case. — 'This  was  an  aftion  upon  the  cafe  brought  upon  a  policy  of 
infurance,  in  which  the  plaintiff  declared,  that  Giles  Rooke,  on  the  5th  of 
Otlober  1741,  caufed  to  be  made  a  policy  t>f  infurance,  in  the  name  of  Caleb 
Smith,  at  and  from  South-Carolina  to  Cowes,  upon  ilie  fhip  Polly,  whereof 
was  mafter,  William  Henry,  interejl  or  no  interefi,  free  from  average,  and 
"without  benefit  offalvage  ;  without  further  account  to  be  given  by  the  affured 
for  the  fame  ;  at  and  after  the  rate  of  ^1.  15s.  per  cent,  and  in  cafe  of  lofs,  the  af- 
fured to  abate  2I.  per  cent. — And  the  faid  Giles  averred,  that  the  faid  policy  of 
alfurance  was  fo  made  as  aforefaid,  in  the  name  of  the  faid  Caleb  Smith,  on  the 

account 


CONCEAL     M     E     N    T.       •  nr 

account  and  rifque  of  the  faid  Giles  ;  and  that  the  faid  Giles,  at  the  time  of 
making  thereof,  was  folely  interefted  therein  :  that  the  (hip  firft  arrived  at 
South-Carolina,  and  on  the  12th  day  of  July  1741,  failed  from  thence  for 
Cowes,  and  on  the  18th  of  July  was  taken  as  a  prize  by  the  Spaniards. — ■ 
There  was  another  count  for  5I.  15s.  for  money  had  and  received  by  the 
defendant,  for  the  ufe  of  the  plaintiff.  Damages  laid  lool. — The  defendant 
pleaded  the  general  iffue,  non  alfumpfit,  and  ilfue  was  thereon  joined. — Upon 
this  cafe,  it  was  clearly  taken  at  the  trial  before  Lee,  C.  J.  without  any 
objeftion  or  queftion  made  upon  it,  that  the  plaintiff'  was  well  entitled  to 
maintain  this  aftion  upon  the  policy  of  infurance  made  in  the  name  of  Caleb 
Smith,  who  was  the  policy -broker  employed  to  procure  the  infurance,  he 
having,  by  indorfement  upon  the  policy,  acknowledged  and  declared  that  the 
policy  was  made  in  his  name  upon  the  account,  and  for  the  fole  benefit  and 
rifque  of  the  plaintiff^;   and  Smith  was  allowed  without  any  objeftion,  to  prove 

the  underwriting  by  the  defendant,  and  his  own  indorfement. In  this  cafe, 

the  defence  infifted  on  for  the  defendant  underwriting  this  policy  was,  that  the 
plaintiff  had  been  informed  by  a  letter  wrote  from  Carolina,  by  a  ftiip  called 
the  Collet,  to  one  Mr.  Crockatt,  that  the  Polly,  the  fliip  infured,  had  failed 
ten  days  or  a  fortnight  from  Carolina,  be/ore  the  fliip  Collet,  and  that  the  ffiip 
Collet  had  arrived  in  England  ahontjl'ven  days  before  the  infurance  was  made, 
and  that  the  plaintiff  had  not  informed  the  defendant  of  this,  which  was  in- 
fifted  on  to  be  a  fraud  in  the  plaintiff^  fufficient  to  difcharge  the  defendant  of 
this  infurance,  it  being,  as  was  infiffed,  a ,  fettled  and  effabliffned  rule  that, 
on  making  an  infurance,  "  all  material  circuvijiances,  relating  to  the  adventure, 
ought  to  be  di/clo/ed  to  the  infurer,  for  him  to  judge  upon ;"  and  the  C.  J. 
allowed  this  rule,  and  declared  his  opinion,  that  the  concealment  infiffed 
on  was  a  fufficient  circumftance  to  difcharge  the  defendant  from  the  policy  ; 
for  he  faid,  that  the fe  contrafts  are  made  upon  a  mutual  faith  and  credit; 
and  that  to  conceal  fuch  circumjlances,  which  may  viake  avy  difference  in  the 
adventure,  is  fraudulent ;  for  the  infurer  ought  to  have  the  advantage  of 
judgment  upon  them;  and  that  where  there  is  fuch  concealment,  the 
infurance  ought  not  to  bind. — But  the  defendant  not  being  able  to  make  out 

this  fa6l  to  the  fatisfaClion  of  the  jury,  the  plaintiff"  Kad  a  verdift.— N.  B. 

In  this  cafe  the  'infurance  was  a  re-afllirance ;  and  it  was  faid  by  feveral 
policy-brokers,  that  where  policies  are  made,  intereft  or  no  intereft,  it  is 
generally  in  fuch  cafes  of  re-affUranees. — DiB.  "W.  and-  Com.  148,  16th  of 
December  1743,  at  Guildhall. — Rooke  v .  Thurmond'.'' 

6.  Case. — One  thoufand  pounds  was  infured  'on--ihe  ffiip  called  the 
St.  Clair,  prize  to  the  Neptune,  and  on  her  cargo,  between  the  6th  and  8th  of 
September  1758,  at  and  from  Naples  to  Leghorn,  Warranted  free  of  average, 
unlefe  general,  at  fix  guineas  percent,  premium,  amd  i«  cafe  of  lofs,  to  abate 
two  per  cent,  as  ufuaL-:^Th€  plaintiff^  in  his  declaration  averred,  that  the  fliip 
before  making  the  affurance,  to  wit,  on  the  3d  day  'of  Auguft  i75'8,  was  in 
good  fofety  at  Naples  ; .  with  the  like  averment  as  to  the  goods,  and  the 
property  of  them ;    aa4  tliat  the  fliip  on  the  fame  day  departed  from  Naples 

on 


ii6  CONCEALMENT. 

on  her  voyage  towards  Leghorn,  and  on  the  25th  of  AuguR  v/as  taken  as  a 
prize  by  the  French,  and  wholly  loft  to  the  proprietor. — The  diftance  from 
Naples  to  Leghorn  is  computed  about  fixty  leagues,  and  the  voyage  may  be 
made,  if  the  winds  are  fair,  in  tzco  days ;  fo  that  the  conftant  ufage  is  when  a 
policy  is  tendered  to  the  underwriters,  to  infure  for  fo  fliort  a  voyage,  to 
inform  them  of  a  certainty  when  the  Oiip  was  fafe  in  port,  left  flie  liiould 
be  taken  before  ftie  is  underwrote,  or  be  a  miflingfliip  at  the  time  of  under- 
writing her  :  in  the  latter  cafe  many  underwriters  will  not  for  any  confideration 
underwrite   a   miffing  fhip,   and  fuch    as  do,    always   expe6l  and  receive  a 

premium,  Avhich  they  conlider  as  adequate  to  the  rifque. About  the  latter 

end  of  Auguft  1758,  Mr.  Butler,  a  policy-broker,  received  orders  from 
Mr.  Richard  Willis,  to  infure  i,oool.  on  the  fliip  and  cargo  for  the  voyage  in 
queftion,  and  to  give  a  premium  of  per  cent,  but  as  he  could  not  give 

any  certain  account  when  the  fliip  was  fafe  in  port,  he  could  not  get  the 
infurance  done,  either  by  the  private  underwriters,  or  at  the  public  offices, 
although  he  offered  ten  guineas  per  cent,  whereof  he  advifed  Mr.  Richard 

Willis,  his  principal. On  the  6th  day  of  September   1758,  Mr.  Richard 

W^illis  applied  again  to  the  policy-broker,  and  informed  him,  that  he  had 
received  advice  from  the  plaintiff,  Mr.  Livewell  Green,  his  correfpondent  at 
Naples,  that  the  St.  Clair  had  put  to  fea,  but  by  ftrefs  of  weather,  was  drove 
back  to  Naples,  and  was  fafe  in  port  there  on  the  8th  of  Auguft  :  whereupon 
the  policy-broker,  in  the  prefence  of  Mr.  Willis,  wrote  down  in  his  broker's 
book  as  follows  :  "  In  Naples  the  8th  of  Auguft,  i,oool.  on  the  fliip  and  cargo 
"  valued,  St.  Clair,  prize  to  the  Neptune,  Green,  Naples  to  Leghorn  :"  and 
informed  Mr.  Willis,  he  made  no  doubt  this  being  a  faft,  he  fliould  get  the 
policy  underwrote  at  fix  guineas  per  cent,  premium,  and  accordingly  filled 
up  a  policy  to  be  tendered  as  ufual  to  the  underwriters,  and  at  the  bottom  of 
the  blank  fide  of  the  policy  tranfcribed  thefe  words  from  his  broker's  book, 

which  always  contains  the  inftruftions  from  the  affured. On  the  fame  6th 

of  September,  the  policy-broker  offered  the  policy  to  Mr.  John  Anthony 
Rucker,  to  be  underwrote  by  him,  after  acquainting  him  with  the  above 
circumftances,.  and  in  particular,  that  the  fliip  was  ya/e  in  port  on  the  8th  day 
of  AugUjl,  and  ffiewing  the  memorandum  at  the  foot  of  the  blank  fide  of  the 
policy  of  that  import ;  upon  which  Mr,  Rucker  made  the  following  obferva- 
tion  to  the  broker,  viz.  that  there  were  letters  from  Leghorn  of  the  14th  day 
of  Augiijl,  which  took  no  notice  of  the  St.  Clair's  arrival  there,  and  that 
although  flie  was  in  port  at  Naples  on  the  8th,  ^le  might  have  been  arrived  by 
the  \:\th. — The  broker  replied,  that  as  the  ftiip  was  put  back  after  her  firft 
failing,  in  foul  weather,  there  was  no  probability  that  ftie  fhould  fail  fo  foon 
as  the  8th,  or  until  the  winds  and  weather  were  favourable. — This  reriiark  of 
the  broker,  who  had  for  many  years  been  a  commander  of  merchant-fliips  in 
that  trade,  being  a  reafon^ible  prefumption,  connected  with  the  warranty  of 
the  ftiip's  being  fafe  in  port  on  the  8th  of  Auguft,  Mr.  Rucker  underwrote 
the  policy  for  lool.  as  did  Mr.  Wilham  Bowden  the  defendant,  and  the  two 
other  underwriters,  and  within  two  days  afterwards,  fix  more  underwriters, 
for  tool,  eachj  in   toto  i,oool.  was  fubfcribed  on  the  policy, — ^On  the  8th  day 

of 


CONCEALMENT.  117 

of  September  the  policy  thus  underwritten,  was  fent  by  Mr.  Butler  or  Mr. 
Peter  Mauger  his  partner,  to  Mr.  Willis ;  and  on  that  or  the  next  day, 
Mr.  Richard  Willis  informed  the  broker,  that  the  letter  from  his  correfpondent 
mentioned,  that  the  (hip  failed,  the  ^d,  and  not  that  pie  xms  in  port  the  %th  of 
Auguji ;  to  which  Mr.  Mauger  anfwered,  that  Mr,  Butler  had  certainly  taken 
down  the  minutes  according  to  his  inftruftions ;  whereupon  Mr.  Willis 
delivered  the  policy  to  Mr.  Mauger,  in  order  to  get  the  confent  of  the  under^ 
writers,  to  alter  the  minute  at  the  foot  of  the  policy. — ^The  fame  day  the 
policy-broker  applied  to  Mr.  Rucker,  and  informed  him  of  the  miflake,  as  to 
tlie  warranty  of  the  (hip's  being  fafe  in  port  on  the  8th,  inftead  of  the  3d  of 
Auguft;  who  thereupon  infilled  on  ftriking  his  name  off  the  policy,  which  the 
policy-broker  would  not  agree  to,  without  leave  of  his  principal ;  which 
anfwer  of  Mr.  Rucker  was  communicated  to  Mr.  Willis  by  Mr.  Mauger  the 

fame  day. On   Tuefday  the   12th  day  of  September  Mr.  Butler,   on  his 

return  to  town  out  of  the  country,  being  informed  by  Mr.  Mauger  of  the 
miflake  of  the  8th  inflead  of  the  3d  of  Augufl,  went  to  Mr.  WiUis's  houfe, 
and  told  him  that  he  had  informed  every  one  of  the  underM'riters,  that  the 
fhip  was  fafe  in  port  on  the  8th  of  Augufl ;  and  that  he  apprehended,  that  if 
any  accident  fhould  happen,  the  aflured  would  not  be  fafe  in  relying  on  the 
alTurance  : — whereupon  Mr.  Willis  gave  him  orders  to  get  the  fum  re-infured, 
and  give  a  premium  of  ten,  twelve,  or  even  fifteen  guineas  per  cent,  which 
Mr.  Butler  endeavoured  to  do,  by  applying  to  a  number  of  underwriters,  but 

could  not  effeft  it,  or  get  any  fum  underwrote  on  the  policy. This  being 

therefore  the  fingle  point  in  contefl,  the  underwriters,  to  fhew  their  candour, 
and  to  fave  expence,  entered  into  the  following  agreement. — "  Whereas  a 
"  policy  of  infurance  was  made  in  the  name  of  Mr.  Richard  Willis,  for  the 
"  ufe  and  account,  and  in  trufl  for  Mr.  Livewell  Green,  at  and  from  Naples 
"  to  Leghorn,  warranted  free  of  average,  unlefs  general,  upon  any  kind  of 
"  goods  and  merchandife,  and  alfo  upon  the  body,  tackle,  apparel,  ordnance, 
"  munition,  artillery,  boat,  and  other  furniture  of  the  good  fhip  or  veffel 
"  called  the  St.  Clair,  prize  to  the  Neptune,  beginning  the  adventure  at 
"  Naples,  and  to  continue  till  the  faid  fhip  and  goods  fhould  be  arrived  at 
"  Leghorn  ;  and  the  faid  fhip  and  cargo  were  by  the  faid  policy  valued  at  the 
"  fum  infured,  which  faid  policy  of  infurance  was  underwritten  by  us  the 
"  underwritten  infurers  refpeftively,  in  confideration  of  61.  6s.  per  cent,  for 
'•■  the  fum  of  lool.  each,  on  or  about  the  6th,  7th,  and  8th  days  of  September 
"  1758,  as  by  the  faid  policy  may  more  at  large  appear: — and  whereas  the 
"  faid  infured  fhip  and  goods  were  totally  lofl  to  the  proprietor  thereof,  on  or 
"  about  the  25th  day  of  Augufl  1758;  and  a  que  (lion  has  arifen  between  the 
"  infured  and  infurers  on  the  faid  policy,  whether  the  infurers  are  liable  to 
"  pay  fuch  lofs  or  not,  and  thereupon  aftions  are  intended  to  be  brought  by 
"  the  faid  Livewell  Green,  againfl  the  refpeftive  underwriters  on  the  faid 
"  policy,  for  recovery  of  fuch  lofs,  againfl  each  of  them  rcfpeflively. — Now 
•'  to  avoid  the  expence  of  proving  fuch  fafts  as  are  not  controverted  between 
"  the  underwriters  and  affured ;  we  the  underwritten,  infurers,  and  alfo  the 
"  affured,  do  therefore  refpeftively  promife  and  agree,  to  admit  at   the  trial 

G  g  '•-  of 


11 


8  CONCEALMENT. 


"  of  ever}'  acllon  to  be  brought  againfl;  each  of  the  infurers,  on  the  faid  policy 
"  of  infurance,  the  feveral  fafts  hereafter  mentioned,  that  is  to  fay  ; — that  the 
'•'  faid  policy  of  infurance  was  fubfcribed  by  the  infurers  rcfpeftively,  for  the 
"  fum  of  lool.  each  at  the  time  therein  refpeftively  mentioned  ; — that  the 
"  faid  infurance  was  made  in  the  name  of  the  faid  Richard  WilHs,  in  truft, 
"  and  for  the  ufe  and  benefit  of  the  faid  Livewell  Green,  who  was  captain  or 
"  commander,  and  fole  owner  of  a  certain  private  fhip  of  war,  called  the 
"  Neptune  ; — that  the  faid  (hip  was  in  fafety  at  Naples,  the  3d  of  Auguft 
"  1758  :  and  that  the  faid  Livewell  Green,  on  the  third  of  Auguft  1758,  when 
"  the  faid  fhip  failed  from  Naples,  and  on  the  25th  of  Auguft,  when  ftie  was 
"  taken  by  the  French,  was  interefted  in  the  faid  (liip  St.  Clair,  and  in  the 
"  goods  loaded  on  board,  valued  in  the  faid  policy  at  the  fum  infured  r— that 
•'  the  faid  ftiip  and  her  cargo  were  taken  by  the  French,  on  the  25th  of 
"  Auguft,  when  fhe  was  proceeding  in  her  voyage  from  Naples  to  Leghorn." 
- — ■ — If  the  inJlruBions  taken  down  by  the  broker,  had  mentioned  that  the 
fhip  was  in  port  the  3d,  and  not  the  8th  of  Auguft,  ver)'  few  underivr iters 
would  have  underwritten  the  policy  for  any  premium  :  and  thofe  who  would, 
would  not  have  done  it  for  lefs  than  tv.-enty  guineas  per  cent,  inftead  of  fix  ; 
and  it  feems  now  to  be  a  fettled  point,  from  a  vaft  variety  of  determinations, 
that  in  every  policy  cafe  the  fuggefiio  falfi,  or  fupprejjio  veri,  makes  void  the 

policy  ; — fo  determined  in  Seaman  and  Fonnereau.     Hil.  1741. It  was  fa 

determined  in  the  caufe  of  Williams  againft  Touchett,  which  was  tried  before 
Lord  Mansfield  on  the  ift  day  of  May  inftant,  on  the  aftured's  receiving  a 
private  letter,  intimating  a  fufpicion  of  the  ftiip's  deftination,  which  letter  was 

fecreted  from  the  underwriters. If  the  faft  had  been  difcovered,  that  the 

Ihip  failed  the  3d,  and  was  not  in  port  the  8th  of  Auguft,  no  underwriter  of 
credit  would  have  fubfcribed  the  policy  for  twenty  guineas  per  cent,  premium, 
as  this  cafe  is  circumftanced. — -Verdift  for  the  defendant.  At  Guildhall,  Sitt. 
aft.  Trin.  1759. — Livewell  Green  v.  William  Bozvden. 

7.  Case. — An  aftion  was  afterwards  brought  againft  the  broker,  Mr.  Butler, 
by  the  aflured  in  the  above-mentioned  caufe,  to  recover  indemnification  for 
the  lofs  of  loool. ;  the  broker  having  deviated  from  the  injlruclions  given  to 
him,  as  was  alleged  by  Mr.  Willis,  who  was  admitted  to  give  evidence  thereof; 
— and  a  verdift    was   given  againft  him  accordingly. — Green  v.  Butler. 

8.  Case. — Several  infurance-caufes  ftanding  upon  the  fame  circumftances, 
it  was  agreed  "  that  all  ftiould  be  bound  by  the  verdicl  given  in  one  :"  and 
a  verdift  was  given  in  that  one,  for  the  plaintiff: — but  the  defendant  gave 

notice  of  a  motion  for  a  new  trial ;    which   he   afterwards  obtained. Sir 

Fletcher  Norton  moved,  on  behalf  of  the  plaintiff,  in  the  other  caufes,  that 
the  refpeftive  defendants  fhould  pay  their  money  to  the  plaintiff"  purfuant  to 
their  agreement :  he  having  obtained  a  verdicl  in  the  caufe  already  tried : — 
but  the  court  were  clearly  and  unanimoufly  of  opinion,  that  a  confent  "  to 
be  bound  by  one  of  many  caufes  upon  the  fame  queftion,"  means  fuch  a 
verdift  as  the  court  thinks  ought  to  ftand  as  a  final  determination  of  the 

matter: 


C     O     N     C    E     A     L     M     E     X     T.  ug 

matter : — that  in  the  prefent  cafe,  a  material  circumjlance  was  concealed  from 
the  infurer,  by  the  infured  ;    and  therefore  the  whole  contratl  was  void  ;    and 

the  court  had  made  a  rule  for  that  purpofe. Nothing  taken  by  the  motion. 

— Hod/on  V.  Richard/on, — 3  Eurr.  1477.  28th  of  May  1764. 

9,  Case. — It  was  an  action  on  a  policy  of  infurance  for  one  year;  viz. 
from  16th  of  Oclober  1759,  to  16th  of  October  1760,  interejl  or  no  intereji, 
for  the  benefit  of  the  governor  of  Fort  Marlborough,  George  Carter,  againft 
the  lofs  of  Fort  Marlborough,  in  the  idand  of  Sumatra  in  the  Eafl-Indies,  by 
it's  being  taken  by  a  foreign  enemy  : — that  event  happened  ;  the  Fort  was 
taken  by  Count  DEftaigne,   within  the  year : — a  verdict  was  found  for  the 

plaintiff,   by  a  fpecial  jury. Motion  for  a  new  trial ; — on  the  objection, 

that  circumftances  were  not  fufficiently  difclofed. Lord  Mansfield  :  infu- 
rance is  a  contract  upon  fpeculation  : — the  fpecial  facts  upon  which  the 
contingent  chance  is  to  be  computed,  lie  raoft  commonly  in  the  knowledge 
of  the  infured  only  ;  the  underwriter  trufls  to  his  reprefentation,  and  pro- 
ceeds upon  confidence  that  he  does  not  keep  back  any  circumftance  in  his 
knowledge,  to  miflead  the  underwriter  into  a  belief  that  the  circumftance 
does  not  exift,  and  to  induce  him  to  eftimate  the  rifque,  as  if  it  did  not 
exift  ; — the  keeping  back  fuch  circumjlance  is  a  fraud  ;  and  therefore  the 
policy  is  void :  although  the  fupprelfion  fliould  happen  through  miftake, 
without  any  fraudulent  intention  ;  yet  ftill  the  underwriter  is  deceived,  and 
tlie  policy  is  void  ;  becaufe   the  rifque   run  is  really  different  from  the  rifque 

under  flood  and  intended  to  he  run,  at  the  time  of  tlie  agreement. The  policy 

would  equally  be    void,   againft  the  underwriter,  if  he  concealed ;    as  if  he 
infured  a  fliip  on  her  voyage,   which  he  privately  knew  to  be   arrived  :    and 

an  aftion  would  lie  to  recover  the   premium. The  governing  principle  is 

applicable  to  all  contracts  and  dealings  : — good  faith  forbids  either  party,  by 
concealing  what  he  privately  knows,  to  draw  the  other  into  a  bargain,   from 

his  ignorance  of  that  fact,  and  his  believing  the  contrary' : but  either  party 

may  be  innocently  filent,  as  to  grounds  open  to  both,  to  exercife  their  judg- 
ment upon  ;   "  aliud  eft  celare  ;   aliud  tacere  :    neque  enim  id  eft  celare  quic- 
quid  reticeas ;    fed  cum  quod  tu  fcias,  id  ignorare  emolument!  tui  caufa  velis 
eos,  quorum  interfit  id  fcire." — 'This  definition  of  concealment  reftrained  to 
tlie  efficient  motives  and  precife  fubject  of  any  contract,  will  generally  hold  to 
make   it  void,  in  favour  of  the  party  mifled  by  his  ignorance  of  the  thing 
concealed. — There  are  manv  matters,  as  to  which  the  infured  may  be  inno- 
cently filent :  he  need  not  mention  what  the  underwriter   knows ;   "  fcientia 
utrinque  par  pares  contrahentes  facit :" — an  underwriter  cannot  infift  that  the 
policy  is  void,  becaufe  the  infured  did  not  tell  him  what  he  actually  knew,  what 
way  foever  he  came  to  the  knowledge  : — the  infured  need  not  mention  what 
the  underwriter  ought  to  know;  what  he  takes  upon  him/elf  the  knowledge  of; 
or  what  he  wairj  being  informed  of :  the   underwriter  needs  not  be  told  what 
leftens  die  rifque  agreed  and  underftood  to  be  run  bv  the  exprefs  terms  of  the 
policy  ;    he  needs  not  be  told  general  topics  of  fpeculation  :  as,   for  inftance  ; 
the  underwriter  is  bound  to  know  even,'  caufe  which  may  occafion  natural 

perils  ; 


120 


CONCEALMENT. 


perils;  as,  tlie  difficulty  of  the  voyage  ;  tlie  kind  of  feafons  ;  the  probability 
of  lightning,  hurricanes,  earthquakes,  &c. :  he  is  bound  to  know  every  caufe 
v/hich  may  occafion  political  penis  ;  from  the  ruptures  of  Rates  ;  from  war, 
and  the  various  operations  of  it :  he  is  bound  to  know  the  probability  of 
fafety,  from  the  continuance  or  return  of  peace  ;  from  the  imbecility  of  the 
enemy,  through  the  weakncfs  of  their  councils,  or  their  want  of  ftrength,  &c. 

If  an  underwriter  infures  private  fhips  of  war,  by  fea  and  on  fhore,    from 

ports  to  ports,  and  places  to  places,  any  where,  he  needs  not  be  told  the 
fecret  enterprifes  they  are  deftined  upon  ;  becaufe  he  knows  fome  expedition 
muft  be  in  view ;  and,  from  the  nature  of  his  contraft,  without  being  told, 
he  waves  the  information: — if  he  infures  for  three  years,  he  needs  not  be  told 
any  circumftance  to  fliew  it  may  be  over  in  two  ;  or  if  he  infures  a  voyage, 
with  liberty  of  deviation,  he  needs  not  be  told  what  tends  to  fhew  there  will 

be  no  deviation. Men   argue  differently,  from   natural   phenomena,  and 

political  appearances ;  they  have  different  capacities,  different  degrees  of 
knowledge,  ajid  different  intelligence  :  but  the  means  of  information  and 
judging  are  open  to  both  ;  each  profefles  to  aft  from  his  own  fls:ill  and  fagacity, 
and  therefore  neither  needs  to  communicate  to  the  other. — The  reafon  of  the 
rule  which  obliges  parties  to  difclofe,  is  to  prevent  fraud,  and  to  encourage 
good  faith :  it  is  adapted  to  fuch  fafts  as  vary  the  nature  of  the  contraft ; 
which  one  privately  knows,  and  the  other  is  ignorant  of,  and  has  no  reafon  to 

fufpeft  : the  queftion  therefore  muff  always  be,  "  xohethcr  there  teas,  under 

all  the  circumjtayices  at  the  time  the  policy  teas  underwritten,  a  fair  reprefen- 
tation,  or  a  concealment?— fraudulent,  if  dc/igned ;  or,  though  not  defgned, 
varying  materially  the  obje£l  of  the  policy,  and  changing  the  rifque  underfood  to 

be  run." This  brings  me,  in  the  fecond  place,  to  fi;ate  the  cafe  now  under 

confideration  : — the  policy  is  againft  the  lofs  of  Fort  Marlborough,  from  being 
defl;royed  by,  taken  by,  or  furrendered  unto,  any  European  enemy,  between 
the  iff  of  Oftober  1759,  and  the  ift  of  October  1760:  it  was  underwritten 
on  the  gth  of  May  1760: — the  underwriter  knew  at  the  time,  that  the  policy 
was  to  indemnify,  to  that  amount,  George  Carter,  the  governor  of  Fort 
Marlborough,  in  cafe  the  event  infured  againfl:  fliould  happen.  The  governor's 
inftruftions  for  the  infurance,  bearing  date  at  Fort  Marlborough  the  22d  of 
September  1759,  were  laid  before  the  underwriter:  two  aftions  upon  this 
policy  were  tried  before  me  in  the  year  1762  :  the  defendants  then  knew  of  a 
letter  written  to  the  Eaff-India  company,  which  the  company  offered  to  put 
into  my  hands  ;  but  would  not  deliver  to  the  parties,  becaufe  it  contained  fome 
matters  which  they  did  not  think  proper  to  be  made  public  : — an  objeftion 
occurred  to  me  at  the  trial,  "  whether  a  policy,  againft  the  lofs  of  Fort 
Marlborough,  for  the  benefit  of  the  governor,  was  good  ?"  upon  the  principle 
which  does  not  allow  a  failor  to  infure  his  wages  ; — but  confidering  that  this 
place,  though  called  a  fort,  was  really  but  a  faftory  or  fettlement  for  trade  : 
and  that  he,  though  called  a  governor,  was  really  but  a  merchant :  confidering 
too,  that  the  law  allows  a  captain  of  a  fhip  to  infure  goods  which  he  has  on 
board,  or  his  fhare  in  the  ffiip,  if  he  be  a  part-owner ;  and  the  captain  of  a 
privateer,  if  he  be  a  part-owner,  to  infure  his  fhare:    confidering  too,  that 

the 


CONCEALMENT. 


121 


the  objeclion  did  not  lie,  upon  any  ground  of  juftice,  in  the  mouth  of  the 
underwriter,  who  knew  him  to  be  the  governor,  at  the  time  he  took  the 
premium  :  and  as,  with  regard  to  the  principles  of  public  convenience,  the 
cafe  fo  fcldom  happens  (I  never  faw  one  before)  any  danger  from  the 
example  is  hitle  to  be  apprehended,  I  did  not  think  myfelf  warranted,  upon 
that  point,  to  nonfuit  the  plaintiff ;  efpecially  too,  as  the  objeftion  did  not 
come  from  the  bar. — Though  this  point  was  mentioned,  it  was  not  infilled 
upon,  at  the  laft  trial ;  nor  has  it  been  ferioufly  argued,  upon  this  motion,  as 
fufficient,  alone,  to  vacate  the  policy  ;  and  if  it  had,  we  are  all  of  opinion 
"  that  we  are  not  warranted  to  fay  it  is  void,  upon  this  account." — Upon  the 
plaintiff's  obtaining  thefe  two  verdifis,  the  underwriters  went  into  a  court  of 
equity  ;  where  they  have  had  an  opportunity  to  fift  every  thing  to  the  bottom, 
to  get  every  difcovery  from  the  governor  and  his  brother,  and  to  examine  any 
witnelTes  who  were  upon  the  fpot : — ^at  laft,  after  the  fulleft  inveftigation  of 
every  kind,   the  prefent  a6iion  came  on  to  be  tried  at  the  fittings  after  laft 

term. The  defendant's  counfcl  contended  at  the  trial,  as  they  have  done 

upon  this  motion,  "  that  the  policy  was  void  :" — firft,  becaufe  the  ftate  and 
condition  of  the  fort,  mentioned  in  the  governor's  letter  to  the  Eaft-India 
compan)',  was  not  difclofed  ;■ — fecondly,  becaufe  he  did  not  difclofe,  that  the 
French  not  being  in  a  condition  to  relieve  their  friends  upon  the  coaft,  were 
more  likely  to  make  an  attack  upon  this  fettlement,  rather  than  remain  idle  ; 
— thirdly,  that  he  had  not  difclofed  his  having  received  a  letter  of  the  4th  of 
February  1759,  from  which  it  feemed  that  the  French  had  a  defign  to  take 
this  fettlement  by  furprife,  the  year  before  : — they  alfo  contended,  that  the 
opinion  of  the  broker  was  almoft  decifxve. — The  whole  was  laid  before  the 

jur)' ;    who  found  for  the  plaintiff". -It  remains  to  confider  thefe  objeftions, 

and  to  examine  "  whedier  this  verdict  is  well  founded  ?" — To  this  purpofe^ 
it  is  neceffary  to  confider  the  nature  of  the  contraft,  at  the  time  it  was  entered 

into. The  underwriter  infures  againft  the  general  contingency  of  the  place 

being  attacked  by  an  European  power. If  there  had  been  any  defign  on 

foot,  or  any  enterprife  begun  in  September  1759,  to  \h&  knowledge  o{  the 
governor,  it  would  have  varied  the  rifque  under jiood  by  the  underwriter ; 
becaufe  not  being  told  of  a  particular  defign  or  attack  then  fubfifting,  he 
eftimated  the  rifque  upon  the  foot  of  an  uncertain  operation,  which  might  or 
might  not  be  attempted  : — but  the  governor  had  no  notice  of  any  defign 
fubfifting  in  September  1759:  there  was  no  fuch  defign  in  faft  :  the  attempt 
was  made  without  premeditation,  from  the  fudden  opportunity  of  a  favour- 
able occafion,  by  the  connivance  and  alTiftance  of  the  Dutch,  which  tempted 

Count  d'Eftaigne  to  break  his  parole. Thefe  being  the  circumftances  under 

which  the  contraft  was  entered  into,  we  Ihall  be  better  able  to  judge  of  the 
objeftions  upon  the  foot  of  concealments. — The  firft  concealment  is,  that  he 
did  not  difclofe  the  condition  of  the  place. — The  underwriter  knew  the 
infurance  was  for  the  governor:  he  knew  the  governor  muft  be  acquainted 
with  the  ftate  of  the  place :  he  knew  the  governor  could  not  difclofe  it, 
confiftent  with  his  duty:  he  knew  the  governor,  by  infuring,  apprehended  at 
leaft  the   poffibility  of  an  attack : — with  this  knowledge,   without  afking  a 

H  h  queftion. 


122 


C    O    N    C    E    A    L     M    E    N    T. 


queftion,  he  underwrote. — By  fo  doing,  he  took  the  knowledge  of  the  ftate  of 
the  place  upon  himfelf.  It  was  a  matter  as  to  Avhich  he  might  be  informed 
various  ways :  it  was  not  a  matter  within  the  private  knowledge  of  the 
governor  only. — But  not  to  rely  upon  that : — the  utmoft  which  can  be  con- 
tended is,  that  the  underwriter  trufled  to  the  fort  being  in  the  condition  in 
which  it  ought  to  be  ;  in  like  manner,  as  it  is  taken  for  granted,  that  a   fhip 

infured  hfea-xoorthy. The  fecond  concealment  is,  his  not  having  difclofed 

that,  from  the  French  not  being  able  to  relieve  their  friends  upon  the  coaft, 
they  might  make  them  a  vifit. — This  is  no  part  of  the  fift  of  the  cafe  :  it  is 
mere  {'peculation  of  the  governor's,  from  the  general  flate  of  the  war :  the 
conjefture  was  dittated  to  him  from  his  fears :  it  is  a  bold  attempt,  for  the 
conquered  to  attack  the  conqueror  in  his  own  dominions  : — the  practicability 
of  it,  in  this  cafe,  depended  upon  the  Englifh  naval  force  in  thofe  feas  ;  which 
the  underwriter  could  better  judge  of  at  London  in  May  1760,  than  the 
governor  could  at  Fort  Marlborough  in  September  1759. The  third  con- 
cealment is,  that  he  did  not  difclofe  the  letter  from  Mr.  Winch,  of  the  4th  of 
February  1759,  mentioning  the  defign  of  the  French  the  year  before. — What 
that  letter  was  ;  how  he  mentioned  the  defign  ;  or  upon  what  authority  he 
mentioned  it ;  or  by  whom  the  defign  was  fuppofed  to  be  imagined,  does  not 
appear : — the  defendant  has  had  every  opportunity  of  difcovery  ;  and  nothing 
has  come  out  upon  it,  as  to  this  letter,  w'hich  he  thinks  makes  for  his  purpofe  : 
— the  plaintiff  offered  to  read  the  account  Winch  wrote  to  the  Eafl-India 
company ;  which  was  objecled  to,  and  therefofe  not  read  :  the  nature  of  that 
intelligence  is  therefore  very  doubtful :    but  taking  it  in  the  ftrongefl;  light,   it 

is  a  report  of  a  defign  to  furprife  the  year  before,  but  then  dropt. This  is 

a  topic  of  mere  general  fpeculation,  which  made  no  part  of  the  faft  of  the 
cafe,  upon  which  the  infurance  was  to  be  made. — It  was  faid,  if  a  man  infured 
a  fhip,  knowing  that  two  privateers  were  lying  in  her  way,  without  mentioning 
that  circumffance,  it  would  be  a  fraud  : — I  agree  to  it :  but  if  he  knew  that 
two  privateers  had  been  there  the  year  before,  it  would  be  no  fraud,  not  to 
mention  that  circumffance  ;  becaufe  it  does  not  follow,  that  they  will  cruife 
this  year  at  the  fame  time,  in  the  fame  place  ;  or  that  they  are  in  a  condition 
to  do  it.  If  the  circumffance  of  "  this  defign  laid  affde"  had  been  mentioned, 
it  would  have  tended  rather  to  leffen  the  rifque,  than  increafe  it ;  for  the 
defign  of  a  furprife  which  has  tranfpired,  and  been  laid  afide,  is  lefs  likely  to 
be  taken  up  again  ;  efpecially  by  a  vanquifhed  enemy. — The  jury  confidered 
the  nature  of  the  governor's  filence,  as  to  thefe  particulars :  they  thought  it 
innocent ;  and  that  the  omiffion  to  mention  them  did  not  vary  the  contrafl : 
— and  we  arc  all  of  opinion,  "  that  in  this  refpeft  they  judged  extremely 

right.'' The  reafon  why  the  counfel  have  not  objefted  to  his  not  difcJofing 

the  grounds  of  his  apprehenfion,  is,  becaufe  it  muff  have  arifen  from  political 
fpeculation,  and  general  intelligence  :  therefore,  they  agree,  it  is  not  neceffary 

to  communicate  fuch  things  to  an  underwriter. Laffly,   great  ftrefs  was 

laid  upon  the  opinion  of  the  broker  : — ^but  we  all  think  the  jury  ought  not  to 
pay  the  leaft  regard  to  it :  it  is  mere  opinion,  which  is  not  evidence  ;  it  is 
opinion  after  an  event ;    it  is  opinion  without  the  leaff  foundation  from  any 

previous 


CONCEALMENT. 


123 


previous  precedent,  or  vjage  ;  it  is  an  opinion  which,  if  rightly  formed,  could 
only  be  drawn  firom  the  fame  premifes  from  which  the  court  and  jury  were  to 
determine  the  caufe  :  and  therefore  it  is  improper  and  irrelevant  in  the  mouth 

of  a  witnefs. There  is  no  imputation  upon  the  governor,  as  to  any  intention 

of  fraud :  by  the  fame  conveyance,  which  brought  his  orders  to  ihfure,  he 
wrote  to  the  company  every  thing  which  he  knew  or  fufpefted :  he  defired 
nothing  to  be  kept  a  fecret,  which  he  wrote  either  to  them  or  his  brother  : 
his  fubfequent  conduct,  down  to  the   8th  of  February  1760,  Ihewed  that  he 

thought    the    danger   very  improbable. The  reafon  of  the   rule  dgainft 

concealment  is,  to  prevent  fraud,  and  encourage  good  faith. — If  the  defend- 
ant's obje61ions  were  to  prevail  in  the  prefent  cafe,  the  rule  would  be  turned 

into  an  inftrument  of  fraud. The  underwriter,  here,  knowing  the  governor 

to  be  acquainted  with  the  flate  of  the  place  ;  knowing  that  he  apprehended 
danger,  and  muft  have  fome  ground  for  his  apprehenfion  ;  being  told  nothino- 

of  either ;    figned  this  policy  without  afking  a  queftion. If  the  objection, 

"  that  he  was  not  told,"  is  fufficient  to  vacate  it,  he  took  the  premium, 
knowing  the  policy  to  be  void  ;  in  order  to  gain,  if  the  alternative  turned 
out  one  way  ;  and  to  make  no  fatisfaftion,  if  it  turned  out  the  other :  he 
drew  the  governor  into  a  falfe  confidence,  "  that,  if  the  worft  fhould  happen, 
he  had  provided  againft  total  ruin  ;"  knowing,  at  the  fame  time,  "  that  the 
indemnity  to  which  the  governor  trufled  was  void." — There  was  not  a  word 
faid  to  him  of  the  affairs  of  India,  or  the  ftate  of  the  war  there,  or  the  condition 
of  Fort  Marlborough  :  if  he  thought  that  omiffion  an  objeftion,  at  the  time, 
he  ought  not  to  have  figned  the  policy,  with  a  fecret  referve  in  his  own  mind 
to  make  it  void  : — if  he  difpenfed  with  the  information,  and  did  not  think  this 
filence  an  objeftion  then;  he  cannot  take  it  up  now,  after  the  event. — What 
has  often  been  faid  of  the  Jlatute  of  frauds,  may,  with  more  propriety,  be 
applied  to  every  rule  of  law,  drawn  from  principles  of  natural  equity,  to 
prevent  fraud — "  That  it  fhould  never  be  fo  turned,  conflrued,  or  ufed,  as  to 

proteft,  or  be  a  means  of  fraud. ' After  the  fulleft  deliberation,  we  are  all 

clear  that  the  verdift  is  well  founded  ;  and  there  ought  not  to  be  a  new  trial : 
confequently,  that  the  rule  for  that  purpofe  ought  to  be  difcharged. — Rule 
difcharged. — 3  Burr.  1905.  Eaft.  6  Geo.  3. — Carter  v.  Boehm. 

10.  Case. — See  Appendix  to  the  Prelim.  Difc.  p.  79. — John/on  and 
Canning  v.  Wefkett,  at  Guildhall,  July  1779. 

11.  If  an  zw/wr^r,  at  the  time  of  underwriting  a  policy,  knows  that  the 
fhip  or  goods  are  fafe  arrived,  his  concealing  it  is  equally  fraudulent,  as  if  the 
infured  knew,  and  concealed,  that  an  accident  had  happened  ; — BynkerfJioek, 
Quceft.  Jnr.  priv.  lib,  4.  c.  26. — Ordin.  of  France. 

12.  See  Prelim.  Difc.  28  to  39,  /[j,  48,  83.  Broker,  Capture,  Date, 
Departure,  Evidence,  Fraud,  Infured,  Intelligence,  Lives,  Seqfon,  Truflee. 


CONDEMNATION. 


[       124      ] 


CONDEMNATION. 

1.  /~^  ASE. — In  an  aftion  on  a  policy  of  afTurance  of  a  (hip,  if  the  plaintiff's 

^^  M'itnefs  fwears  that  the  fliip  was  condemned  by  procefs  of  law,  it  is 

good  evidence  to  prove  it;    but  if  the  defendant  had  offered  that  matter  in 

evidence,  by  his  witnefles,  it  would  not  have  been  fufficient,  without  producing 

the  fentence  of  condemnation. And  it  appears  upon  the  evidence,  that  the 

fhip  was  condemned  by  procefs  of  law  and  fazed : — by  this  fentence  the 
property  and  ownerlhip  are  deftroyed,  and  there  is  no  remedy  upon  the 
policy  of  infurance. — Ruled  by  Holt,  C.  J.  Eaft.  ii  Will.  3.  at  Guildhall. — 
L.  Raym.  724. 

2.  Case. — A  fhip  was  Dutch-built,  and  after  made  an  Englifli  fliip  ;  the 
niafl:er  was  Dutch,  fome  of  the  feamen  Englifli,  and  two  Dutch :  there  being 
war  between  France  and  Holland,  the  French  feize  the  fliip,  as  a  Dutch 
fliip  ;  and  condemn  her  as  a  Dutch  fliip,  in  the  court  of  admiralty  in  France  : 
lh€  is  there  fold  ;  and  after,  coming  into  England,  the  firft  owner  feizes  her, 
and  the  other  brings  trover  ; — and  a  fpecial  verdift  was  found  ;  but  the  court 
would  not  fuffer  it  to  be  argued,  but  ordered  judgment  to  be  entered  for  the 
plaintiff"; — 'for  they  faid,  that  fentences  in  the  courts  of  admiralty  ought  to 
bind  generally,  according  lo  jus  gentium  ;  and  that  if  we  did  not  obferve  the 

fentences  given  abroad,  they  would  not  obferve  ours;  which  would  be  a 
general  inconvenience  : — and  if  the  merchant  in  this  cafe  had  received  wrong, 
he  ought  to  apply  to  the  admiralty  and  council,  this  being  a  matter  of  govern- 
ment ;  and  that  the  king,  if  he  faw  caufe,  would  fend  to  his  ambaflador  in 
France,  who  would  take  care  that  right  Ihould  be  done ;  and  that  if  right  be 
not  done,  then  the  king  would  grant  letters  of  marque  and  reprifal : — and  in 
tliis  cafe  they  remembered  Cottington's  cafe. — Hughes  v.  Cornelius.  Skin.  230. 
Mich.  34.  Car.  2.  B.  R. 

3.  When  a  fliip  is  condemned  as  incapable  of  purfuing  her  voyage:  it 
ouglit  to  be  afcertaincd  whether  this  was  the  confequence  of  accidents,  and 
the  violence  of  the  fea,  or  of  her  age  and  decay,  even  at  the  time  of  her 
departure  ;  for  in  the  latter  cafe  the  infurers  are  not  anfwerable. — 2  Valins 
Connn.  81. 

4.  What  a  fliip  fliall  actually  fell  for  in  a  port  where  flie  is  condemned,  is 
no  proof  at  all  of  her  real  worth,  unlefs  that  port  is  a  proper  market  for  fuch 
a  fiiip :  in  many  little  places,  there  are  few  people  whofe  bufinefs  it  is  to  be 
concerned  in  fuch  purchafes  as  thefe,  ^nd  for  this  reafon  it  has  often  happened, 
that  fliips  under  fuch  circumftances  have  been  fold  for  not  a  quarter  their 
value, — It  is  no  cafy  point  to  fettle  what  a  ftiip  was  really  worth,  after  flie  is  loft. 

5.  See  Prelim.  Difc  80.  Abandonment,  Accident,  Admiralty  and  Admiralty- 
Court,  Appeal,  Capture,  Claim,  Colony,  Document,  Evidence,  Foreign  Court, 

Infiifficicncy, 


CONFISCATION.  I25 

Infiifficiency,  Law  of  Nations,  Letter  of  Marque,  Mafer',  Neutral  Ship  or  Pro- 
perty, Prize,  Property,  Recapture,  Sea-worthy,  Ship,  Wear  and  Tedf.-  '-'"' 

■  ,    ■;,)       ..  V...  .       ..-....■  111.      .; 

C     O     N     F  ■  - 1     S'^  '&  ^''?i^'-  T  H^'^'^^O    «N-  ''^  -■•" 

1.  TT7HATSOEVER  fliall  b^  ■laaei^ihefubj^^^y^ 

''^  '  States  in  any  (hip  whatfoever,  belonging- to ^the  enemies  of  his 
Majefty,  although  the  fame  be  not  of  the  quality  of  contraband  goed^,  may  bd 
conhfcated ;  but  on  the  other  fide,  all  that  which  fliall  be  found  in  the  (hips 
belonging  to  the  fubjefts  of  the  Lords  the  States,  fhall  bfe  accounted  clearand 
free,  although  the  whole  lading,  or  any  part  thereof,  by  juft  title  or  propriety 
fliall  belong  to  the  enemies  of  his  Majefly,  except  always  contraband  goods  ; 
which  being  intercepted,  all  things  fliall  be  done  according,  to  the  meaning 
and  direftions  of  the  preceding  articles. — And  leaft  any  damage  fliould  by 
furprife  be  done  to  the  one  party  who  is  in  peace,  when  the  other  party  fhall 
happen  to  be  engaged  in  war,  it  is  provided  and  agreed,  that  a  fliip  belong- 
ing to  the  enemies  of  the  one  party,  and  laden  with  goods  of  the  fubjefts 
of  the  other  party,  fliall  not  infeft  or  render  the  faid  goods  liable  to  confrf- 
cation,  in  cafe  they  were  laden  before  the  expiration  of  the  terms  and  times 
hereafter  mentioned,  after  the  declaration  or  publication  of  any  fuch  war,  viz. 
if  the  goods  were  laden  in  any  port  or  place  between  the  places  or  limits 
called  the  Soundings,  and  the  Naze  in  Norway,  within  the  fpace  of  fix  weeks 
after  fuch  declaration ;  of  two  months  between  the  faid  place  the  Soundings 
and  the  city  of  Tangier ;  and  of  ten  weeks  in  the  Mediterranean  fea  ;  or 
within  the  fpace  of  eight  months  in  any  other  country  or  place  of  the  world  ; 
fo  that  it  fliall  not  be  lawful  to  confifcate  the  goods  of  the  fubjefts  of  his 
Majefly  taken  or  feized  in  any  Ihip  or  veflel  whatfoever  of  any  enemy  of  the 
Lords  the  States,  upon  that  pretence,  but  the  fame  fliall  be  without  delay 
reftored  to  the  proprietors,  unlefs  they  were  laden  after  the  expiration  of  the 
faid  terms  of  time  refpeftively  ;  but  fo  that  it  may  not  be  lawful  for  them 
afterwards  to  carry  to  enemies  ports  the  faid  merchandifes,  which  are  called 
contraband,  and  for  the  reafon  aforefaid  fliall  not  be  liable  to  confifcation : — 
neither  on  the  other  fide  fliall  it  be  lawful  to  confifcate  goods  of  the  fubjefts 
of  the  Lords  the  States  taken  ox  feized  in  any  fliip  or  veflel  whatfoever  of  an 
enemy  of  his  Majefly,  upon  that  pretence  ;  but  the  fame  fliall  be  forthwith 
reftored  to  the  proprietors  thereof,  unlefs  they  were  laden  after  the  expiration 
of  the  faid  terms  of  time  refpeftively ;  but  fo  that  it  may  not  be  lawful  for 
them  afterwards  to  carry  to  the  enemies  ports  the  faid  merchandifes  which  are 
called  contraband,  and  for  the  reafon  aforefaid  fhall  not  be  liable  to  confifca- 
tion.— Treaty  with  Hull.  1674. 

2.  Whatsoever  fliall  be  found  laden  by  the  fubjefts  or  inhabitants 
of  the  kingdoms  and  dominions  of  either  of  the  faid  kings  of  England 
and  Spain  aboard  the  fliips  of  the  enemies  of  the  other,  though  it  be  not 
forbidden  merchandife,  fhall  be  confifcated,  with  all  tilings  elfc   which   fliall 

I  i  be 


12^  CONSUL. 

be  found  within  the  faid  fhips,  without  exception  or  referve. — Treaty  icilh 
Spain,  1667. 

3.  All   goods   and   merchandife   of  the  faid  confederates,   or  of  their 
people  or  fubjefts,  found  on  board  the  fliips  of  the  enemies  of  either,  fhall  be 

made  prize,  together  with  the  fliips ;  and  confifcated : — but  all  the  goods  and  l 

merchandife  of  the  enemies  of  either,  put  on  board   the  fhips  of  either  of  J 

them,  or  of  their  people  or  fubjefts,  fhall  remain  untouched. — Treaty  loith  ™ 

Portug.   1654.                                                                                            .  ; 

4.  See  Capture,  Claim,  Condemnation,   Contraband,  Freedom  of  Naviga-  > 
lion.  Law  of  Nations,  Neutral  Ship  or  Property,  Property,  Seizure,  Treaty.  1 


CONSTRUCTION. 

1.  T  E  E,  C.  J.  faid,  it  is  certain,  that  in  conflru6lion  of  policies,  the 
-^  Jlridum  JUS,  or  apex  juris,  is  not  to  be  laid  hold  on,  but  they  are  to 
be  conllrued  largely  for  the  benefit  of  trade,  and  for  the  infured. — He  added, 
that  where  there  is  an  infurance  on  goods  on  board  fuch  a  fliip,  that  infurance 
extends  to  the  carrying  the  goods  to  fhore  in  a  boat ; — fo  if  an  infurance  be 
of  goods  to  fuch  a  city,  and  the  goods  are  brought  in  fafety  to  fuch  a  port, 
though  diftant  fiom  the  city,  that  is  a  compliance  with  the  policy,  if  that  be 
the  icfual  place  to  which  the  fhips  come. — Tierney  v.  Etherington. 

2.  A  POLICY  of  infurance  is  but  a  parol  contraft,  and  mufl  be  conflrued 
according  to  the  minds  of  the  parties,  and  not  according  to  the  flrift  fenfe 
of  the  words  ;  and  cited  Styl.  132.  and  i  Roll.  Abr.  450,  in  fupport  thereof. — 
Mich.  3  W.  and  M. — Jefferies  v.  Legandra. 

3.  See  Capture,  Claufe,  Contra^,  Convoy,  Cuflom,  Deviation,  Fire, 
Intendment,   Lighter,  Policy,  Unloading,  Ufage,  Voyage. 


CONSUL. 

J.  nr^HE  inflitution  of  the  confular  office  by  France  and  Spain,  not  only  in 
•*-  foreign  parts,  but  in  all  the  principal  cities  and  ports  of  France,  is 
of  a  two-fold  nature : — for,  befides  that  they  aft  upon  the  fame  principles  as 
our  Britifh  confuls  abroad,  they  are  a  fpecies  of  courts  of  judicature,  called 
Judges-Confuls,  confifting  commonly  of  a  prior  and  confuls,  eflablifhed  and 
fet  apart  wholly  to  confider  of,  and  determine  upon,  all  difputes  in  matters  of 
trade,  navigation,  commerce,  and  infurance,  as  well  between  natives  and 
natives,  as  between  natives  and  foreigners ;  and  that  in  the  mofl  eafy,  unex- 
penfive,  and  fummary  manner ;  thus  preventing  tedious  litigations  at  law : 
and  being   reflrained  merely  to  thofe  matters,  they   become   more   fkilful, 

judicious. 


CONTRABAND.  127 

judicious,  and  expert,  in  deciding  thereupon,  than  any  court  could 
polhbly  be,  wherein  they  undertake  cafes  of  every  kind. — Courts  of  this 
nature  are  eflablifhed  in  almofl  every  trading  nation,  except  Great-Britain  j 
and  are  ufually  formed  by  eUElion  from  amongft  the  merchants  themfelves. 

lUOCi  • 

2.     See  Prelim.  Di/c.  8,  15  to  20,  76.   Amicable  Judicatory,   ChamUr  of 
Affkrance,  Court- Merchant,  Court  of  Policies,  Difpute, 


CONTRABAND. 

1.  XTOBODY,  whether  it  be  mafter  or  commander,  fhall  dare  to  take  on 
-^^  board,  without  exprefs  confent  of  the  owners,  any  goods  prohibited 
to  be  imported  at  the  place  for  which  the  voyage  is  intended,  and  confe- 
quently  efteemed  contraband  ;  under  the  penalty  of  being  corporally  puniftied, 
although  no  feizure  was  made  on  that  account,  and  without  derogation  from 
the  obligation  he  is  under  to  make  fatisfaftion  for  the  damage  that  might 
have  been  occafioned  by  feizure,  conlifcation,  floppage  of  the  voyage,  or 
otherwife. — Ordin.  of  Rott, 

2.  All  the  fubjefls  and  inhabitants  of  Great-Britain  may  with  all  fafety 
and  freedom  fail  and  traffick  in  all  the  kingdoms,  countries,  and  eflates,  which 
are,  or  (liall  be  in  peace,  amity,  or  neutrality  with  Great-Britain,  without 
being  troubled  or  difquieted  in  that  liberty  by  the  fhips  of  war,  gallies,  frigates, 
barks,  or  other  veflels  belonging  to  the  States  General,  or  any  of  their  fubjefts, 
upon  occafion  and  account  of  the  hoflilities  which  may  hereafter  happen 
between  the  faid  States  General  and  the  above  faid  kingdoms,  countries,  and 
eftates,  or  any  of  them,  which  are  or  fliall  be   in  peace,  amity,  or  neutrality 

with  Great-Britain. Freedom  of  navigation  and  traffick  fhall  extend  to  all 

forts  of  merchandife,  except  thofe  of  contraband  goods : — this  term  of 
contraband  goods  is  underftood  to  comprehend  only  all  forts  of  fire-arms  and 
their  appurtenances,  as  cannon,  mufkets,  mortar-pieces,  petards,  bombs, 
granadoes,  fire-crancels,  pitched  hoops,  carriages,  refts,  bandaliers,  powder, 
match,  falt-petre,  bullets,  pikes,  fwords,  morions,  head-pieces,  coats  of  mail, 
halberts,  javelins,  horfes,  great  faddles,  holllers,   belts,  and  other  utenfils  of 

war,  called  in  French,  Affortimcns  fcrvant  a  I'  tfage  de  la  guerre. In  this 

quality  of  contraband  goods  thefe  following  fhall  not  be  comprehended,  corn, 
wheat,  or  other  grain,  and  pulfe  ;  oils,  wine,  fait,  or  generally  any  thing  that 
belongs  to  the  nourifhment  and  fullenance  of  life  ;  but  fliall  remain  free  as 
other  merchandife  and  commodities  not  comprehended  in  the  precedent 
article ;  and  the  tranfportation  of  them  Ihall  be  permitted  even  unto  places  in 
enmity  with   the  faid  States  General,   except  fuch  cities    and  places  as  are 

befegcd,  blocked  up,  or  invefed. It  hath  been  agreed,  for  the  due  execution 

of  what  is  above  faid,  that  the  fliips  and  barks  of  the  Englifli  laden  w'ith 
merchandife,  being  entered  into  any  port  of  the  faid  States  General,  and 
purpofing  to  pafs  from  thence  unto  the  ports  of  their  enemies,  fhall  be  only 

obliged 


128  e    O-   N    T^    R    A    B    A     In     D. 

obliged  to  fhew  urito  the  officers  of  the  port  of  thefaid  States,  ovit  of  which 
they  would  go,  their  paffports,  containing  the  fpecification  of'the  lading  of 
their  fliips,  attefted  and  marked  with  the  ordinary  feal  of  the  officers  of  the 
admiralty  of  thofe  places  from  whence  they  firft  camCj  with  the  .place  whither 
they  are  bound,  all  in  ufual  and  accuftomed  form  ;  after  which  lliewing  of 
their  paffports  in  the  form  aforefaid,  they  may  not  be  difquieted  nor  fearched, 

detained  nor  retarded  in- their  voyages,  upon  aiiy  pretence  whatfoevcr. 

The  fame  courfe  fhall  be  in  regard  of  the  Englifli  (hips  and  veffels  which  fhall 
come  into  any  roads  of  the  countries  under  the  obedience  of  the  faid  States, 
not  intending  to  enter  into  tlie  ports, -or  being  entered  thereinto,  not  to 
unlade  and  break  bulk ;  which  fliips  may  not  be  obliged  to  give  account  of 
their  lading,  but  in  cafe  o^  fufpicion  that  they  carry  unto  the  enemies  of  the 

faid  States  any  contraband  goods,  as  was  above  faid. And  in  cafe  of  fuch 

apparent  fufpicion,  the  faid  fubjefts  of  his  Majelh'  (hall  be  obliged  to  fliew  in' 

the  ports  their  pojjports  in  the   form  fpecihed. But  if  they  were  corat 

within  the  roads,  or  were  met  in  the  open  fea  by  any  of  'he  faid  States'  fhips 
or  private  men  of  waf,  their  fubjefts ;  for  avoiding  of  all  diforder,  the  faid" 
fhips  of  the  United  Provinces,  or  of  their  fubjeC^s,  fliall  not  come  near  within 
cannon-fliot  of  the  Englifli,  but  fliall  fend  out  their  longboat,  and  caufe  only 
two  or  three  men  to  go  on  board  the  Englifli  fliips  or  veffels,  unto  whom  the 
pajfports  and  certificates  of  the  propriety  of  the  fliips  fliall  be  fhewn  by  the 
mafl:er  or  captain  of  the  Englifli  fliip,  in  the  manner  above  fpecifled,  accord- 
ing to  the  form  of  the  faid  certificates,  which  fliall  be  inferted  at  the  end  of 
this  treaty  ;  by  which  paflport  and  certificate  proof  may  be  made  not  only  of 
the  lading,  but  alfo  of  the  place  of  the  abode  and  refidence  of  the  niafl;er  or 
captain,  and  name  of  the  fliip  itfelf,  to  the  end  that  by  thefe  two  ways  it  may 
be  known  whether  they  carry  contraband  goods,  and  that  the  quality  as  well 
of  the  faid  fliip,  as  of  it's  mafter  or  captain,  may  fulhcientlv  appear ;  unto 
which  palfports  and  certificates  entire  faith  and  credit  fliall  be  given  :  and  to 
the  end  that  their  validity  may  be  the  better  known,  and  that  they  may  not 
be   in  any  wife  falfified  and  counterfeit,  certain  marks   and   counter-figns  of 

his  Majeft:y,  and  the  faid  States  General,  fliall  be  given  unto  them. And 

in  cafe  any  merchandifes  and  commodities  of  thofe  kinds,  which  are  before 
declared  to  be  contraband  and  forbidden,  fliall  bv  the  means  aforefaid  be 
found  in  the  Englifli  fliips  and  veflels  bound  for  the  ports  of  the  faid  enemies, 
they  fliall  be  unladen,  judicially  proceeded  againfl:,  and  declared  confifcate 
before  the  judges  of  the  admiralty  of  the  United  Provinces,  or  other  compe- 
tent officers  ;  but  fo  that  the  fliip  and  veflel  or  other  prcc  and  allowed  goods, 
merchandife,    and  commodities    found    in  the  fame  (hip,   may  not  for  that 

caufe  be   in  any   manner   feized   or  confifcate. It  is  furthermore  agreed 

and  covenanted,  that  whatfoevcr  fhall  be  found  laden  by  his  Majefty's  fub- 
jefts  upon  any  fhip  of  the  enemies  of  the  faid  flates,  although  the  fame  were 
not  contraband  goods,  fliall  yet  be  covpfcate,  with  all  that  fhall  be  found  in 
the  faid  fhip,  without  exception  or  refervation  ;  but  on  the  other  fide  alfo, 
all  that  fhall  be  found  in  the  fhips  belonging  to  the  king  of  Great-Britain's 
fubjects,  fhall  be  free  and  difcharged,  although  the  lading  or  part  thereof 

belong 


CONTRABAND.  129 

belong  to  the  faid  States'  enemies,  except  contraband  goods,  in  regaa'd  whereof 
fuch  rule  fhall  be  obferved,  as  hath  been  ordered   in  the  preceding  article. 

If  it  fhould  happen,  that  any  Englifli  captains  fliould  make  prize  of  a 

veffel  laden  with  contraband  goods,  as  hath  been  faid,  the  faid  captains  may 
not  open  nor  break  up  the  chelts,  mails,  packs,  bags,  cafl^s,  or  fell  or 
exchange,  or  otherwife  alienate  them,  until  they  have  landed  them  in  the 
prefence  of  the  judges  or  officers  of  the  admiralty,  and  after  an  inventory- 
by  them  made  of  the  faid  goods  found  in  the  faid  veflels  ;  unlcfs,  the  contra- 
band goods  making  but  a  part  of  the  lading,  the  mailer  of  the  fhip  (liould  be 
content  to  deliver  the  faid  contraband  goods  unto  the  faid  captain,  and  to 
purfue  his  voyage  ;  in  which  cafe  the  faid  mafter  (hall  by  no  means  be  hindered 
from  continuing  his  courfe,  and  the  defign  of  his  voyage. — Treaty  -with 
Holl.    1667. 

3.  Neither  of  the  faid  parties  (hall  give,  nor  confent  that  their  fubjefts 
or  inhabitants  fliall  give  any  aid,  favour,  or  counfel,  direftly  or  indireftly,  by 
land  or  fea,  or  on  the  frefti  waters  ;  nor  fliall  furnifti,  or  permit  the  fubjefts 
or  inhabitants  of  their  lordfliips  and  territories  to  furnifh  any  fliips,  foldiers, 
feamen,  vicluals,  money,  inflruments  of  war,  gun-powder,  or  any  other 
neceflaries  for  making  war,  to  the  enemies  of  either  party,  of  any  rank  or 

condition  whatever. Freedom  of  navigation  and  commerce   fliall  not  be 

infringed,  by  occafion  or  caufe  of  any  war,  in  any  kind  of  merchandifes,  but 
fliall  extend  to  aU  commodities  which  fliall  be  carried  in  time  of  peace,  thofe 
only  excepted,  which  follow  in  the  next  article,  and  are  comprehended  under 
tlie  name  of  contraband.-- — Under  the  name  of  contraband  or  prohibited 
merchandife  fliall  be  comprehended  only  arms,  pieces  of  ordnance,  with  all 
implements  belonging  to  them,  fire-balls,  powder,  match,  bullets,  pikes, 
fwords,  lances,  fpears,  halberts,  guns,  mortar-pieces,  petards,  granadoes, 
muflcet-refts,  bandaliers,  falt-petre,  mufl^ets,  muflvet-fliot,  helmets,  corflets, 
breaft-plates,  coats  of  mail,  and  the  like  kind  of  armature,  foldiers,  horfes,  and 
all  things  neceflary  for  the  furniture  of  horfes,  holfters,  belts,  and  all  other 

warlike  injlruments  whatfoever. The  merchandifes  following  fhall  not  be 

reckoned  among  prohibited  goods,  viz.  all  kind  of  cloth,  and  all  other  manu- 
faftures  woven  of  any  kind  of  wool,  flax,  filk,  cotton,  or  any  other  materials ; 
all  forts  of  clothing  and  veftments,  together  with  materials  whereof  they  ufe 
to  be  made  ;  gold  and  fllver,  as  well  coined  as  not  coined ;  tin,  iron,  lead, 
copper,  and  coals ;  as  .alfo  wheat,  barley,  and  all  other  kind  of  corn  or  pulfe ; 
tobacco,  and  all  kind  of  fpices  ;  faked  and  fmoked  flefli,  falted  and  dried  fifli, 
butter  and  cheefe,  beer,  oils,  wines,  fugars,  and  all  forts  of  fak  ;  and  in 
general,  all  proviflon  which  ferves  for  the  nourifliment  and  fuftenance  of  life; 
likewife  all  kind  of  cotton,  hemp,  flax,  and  pitch ;  and  ropes,  fails,  and 
anchors ;  alfo  mafls  and  planks,  boards  and  beams,  of  what  fort  of  wood 
foever,  and  all  other  materials  requifite  for  the  building  or  repairing  fliips ; 
but  they  fliall  be  wholly  reputed  free  goods,  even  as  all  other  wares  and 
commodities  which  are  not  comprehended  in  the  next  precedent  article  ; 
fo  that  the  fame  may  be  freely  tranfported  and  carried  by  the  fubjeds  of  his 

K  k  faid 


130  CONTRIBUTION. 

faid  Majefty,  even  unto  places  in  enmity  with  the  faid  States  ;  as  alfo  on  the 
other  fide,  by  the  fubjefts  of  the  faid  States  to  places  under  the  obedience  of 
the  enemies  of  his  faid  MajitWy,except  only  towns  or  Yi^Sices  be/ieged,  environed, 
or  invejled  ;  in  Frencli,  blocquees  ou  inveltees. — Treaty  with  Holt.  1674. 

4.  The  like  diftlnflion  of  contraband  and  /r<?e  goods,    is  made  in  the 
Treaty  with  Spain,  i66j, — and  the  Treaty  with  France,  1713. 

5.  See  Capture,  Condemnation.  Conftfcation,  Freedom  of  Navigation,   Jlle- 
galiiy.  Law  of  Nations,  PafJ'port,  Prohibited  Goods,  Seizure,  Treaty. 


CONTRACT. 

1.     ALL  promifcs  and  contrafts  are  to  receive  a  favourable  interpretation: 

-*-  ^  and  fuch  conjlrutlion  is  to  be  made,  where  any  obfcurity  appears,  as 

will  beft  anfwer  the  intent  of  the  parties ; — otherwife  a  perfon,  by  obfcure 

wording  of  his  contraft,  might  find  means  to  evade  and  elude  the  force  of  it. 

Hence  it  is  a  general  rule,  that  all  promifes  fliall  be  taken  mod  ftrong 

againft  the  promifer,  and  are  not  to  be  rejefted  if  they  can  by  any  means  be 

feduced  to  a  certainty. — 1  New  Abr.  168. But  promifes  are  not  valid  if 

the  confideration  be  againft  law. — And  where  there  zx^  frauds  in  contrafts, 
an  aftion  on  the  cafe  will  lie. — Clark s  Epit.  of  Com.  Law. 

2.  The  contraft  of  infurance  then  is  fufceptible  of  all  the  claufes  and 
conditions  which  the  parties  may  agree  to  infert,  provided  they  are  not  contra 
bonos  mores,  nor  repugnant  to  the  nature  and  effence  of  this  contraft,  nor  to 
public  authority. — As  it  is  a  contraft  of  good  faith,  it  muft  be  interpreted 
according  to  received  cujlom,  the  prefumption  being  that  the  parties  have 
intended  X.0  conform  thereto,  if  there  be  no  departure  therefrom  in  the  policy; 
otherwife  they  muft  be  governed  by  the  exprefs  claufes  and  conditions  inferted 

.  in  it,  without  adding  any  thing  thereto  by  an  extenfion  of  one  cafe  to  another. 
—2  Valins  Comm.  45. 

3.  See  Capture,  Claufe,  Commodity,  ConflruEiion,  Fire,  Infurance,  Intend'- 
rttent,  Polity,  Ufage,  Voyage,  Wager,  Written  Claxfe. 

CONTRIBUTION. 

1.  npHE  principle  o^  contribution  is,  that  thofewTiofe  goods  or  intereftitt 
/*-  rifque  have  been  faved  or  benefited,  by  the  damage,  lofs,  orfacrifice 
oF others,  fhould  not  profit  at  the  expence  of  others : — therefore  thofe  whofe 
goods  have  been  facrificed  or  damaged,  or  fuffered  charges,  for  the.  common 
good,  advantage,  or  fafety,  ought  to  be  indemnified  ;  and  juftice  requires 
tliar  -eqnuluy  fliou'ld  take  place,  by  contribution,  amongft  all  thofe  interefied, 
a\&\  and 


CONTRIBUTION.  in-, 

and  who  have  been  in  danger  of  lofing  all  ; — and  where  fome  have  faved  what 
was  in  rifque,  only  becaufe  others  have  facrificed  theirs. — Domat,  Loix  civilcs, 

liv.  2.    tit.  9. But  if  goods,  before  they  -were  thrown  overboard,  were 

already  damaged,  a  deduction  ought  to  be  made  in  their  value  accordingly. 

2.     It  is  a  queftion  of  intricacy,  whether  the  goods  faved    from  the   fea 
ought  to  contribute  according  to  their  weight,    or  according  to  their  value  ? — 
The  latter  rule   is  efpoufed  in  the  Roman  law ;    and  is  adopted  by  all  the 
commercial  nations  in  Europe,   without  a  fingle  exception,   as   far  as  I  can 
learn. — Thefe   authorities    notwithftanding,   to   which    I   am  fenfible     great 
regard  is  juftly  due,  it  is  not  in  my  power  to  banifn  an  imprelTion  I  have,  that 
the  rule  of  contribution  ought  to  be  ti'^?|g-/i;^,  not  value;   and  whether,  after  all, 
the  impreflion  ought  to  be  banifhed,  muft  be  decided  by  reafon,  not  authority. 
— In  every  cafe  where  a  man  gives  away  his  money  or  his  goods  for  behoof 
of  a  plurality  connefted  by  a  common  intereji,   two  things  are  evident :    firft 
that  his  equitable   claim   for  a  recompence  cannot  exceed  the  lofs  he  has 
fuftained  ;    and  next,  that  each  individual  is  liable  to  make  up  the  lofs  of  that 
part  which  was  given  away  on  his  account.     When   a  ranfom  is  paid    to  a 
privateer  for  the  fhip  and  cargo,  a  fhare  of  the  money  is   underftood   to  be 
advanced  for  each  proprietor,  in  proportion  to  xhtvaliLC  of  his  goods;    and 
that   fhare  he  muft  contribute,   being  laid  out  upon  his  account,  or  for  his 
fervice.     That  the  fame  rule  is  applicable  where  a  fliip  is  faved  by  abandonino- 
part  of  it's  cargo  (Jetti/on)  is  far  from  being  clear  :  let  us  examine  the  matter 
attentively,   ftep  by  ftep.     The  cargo  in  a  violent  ftorm  is  found  too  weighty 
for  the  (hip,  which  muft  be  dift)urdened  of  part ;    let  us  fuppofe  the  one  half: 
in  what  manner  is  this  to  be  done  ?    The    anfwer  would  be  eafy,  were  there 
leifure  and  opportunity  for  a  regular  operation  :    each  perfon  who  has  the 
weight  of  a  pound  aboard,  ought  to  throw  the  half  into  the  fea  ;   for  in  ftrift 
juftice  one  perfon  is  not  bound  to  abandon  a  greater  proportion  than  another : 
— this  method,  however,  is  feidom  or  never  practicable  ;    becaufe  in  a  hurry 
the  goods  at  hand  muft  be  heaved  over :   and  were  it  prafticable,   it  would  not 
be  for  the  common  intereft,  to  abandon  goods  of  little  weight  and  great  value, 
along  with  goods  of  great   weight  and  little  value. — Hence  it  comes  to  the 
common  intereft,  and  without  afls.ing   queftions,    the   common  praftice,  to 
abandon  goods  the  value  of  which  bears  no  proportion  to  their  weight :    this, 
as  being  done  for  the  common  intereft,  entitles  the  proprietors  of  thefe  goods 

to  a  recompence  from  thofe  for  whofe  fervice  the  goods  were  abandoned  : 

now  the  fervice  done  to  each  proprietor  is,  inftead  of  his  valuable  goods,  to 
have  others  thrown  overboard  of  a  meaner  quality  ;  and  for  fuch  fervice  all 
the  recompence  that  can  be  juftly  claimed  is  the  value  of  the  goods  thrown 
overboard  : — let  us  fuppofe  with  refpeft  to  any  owner  in  particular,  that 
regularly  he  was  bound  to  throw  overboard  twenty  ounces  of  his  goods ;  all 
that  he  is  bound  to  contribute,  is  the  value  of  twenty  ounces  of  the  goods  that 
in  place  of  his  own  were  aftually  thrown  overboard. — In  a  word,  this  ftiort- 
hand  way  of  throwing  into  the  fea  the  leaft  valuable  goods,  appears  to  me  in 
the  fame  light,  as  if  the  feveral  owners  of  the  more  valuable  part  of  the  caro-o, 

had 


132  CONTRIBUTION. 

had  each  of  them  purchafed  a  quantity  of  the  mean  goods  to  be  thrown  into 

the  fea  inflead  of  their  own. 1  cannot  help  at  the  fame  time  obferving,  that 

the  doctrine  of  the  Roman  law  appears  very  uncouth  in  fome  of  it's  confe- 
quences  : — jewels,  and  I  may  add  bank-bills,  are  made  to  contribute  to  make 
up  the  lofs,  though  they  contribute  not  in  any  degree  to  the  diftrefs ;  nor  is 
a  fingle  ounce  thrown  overboard  upon  their  account ;  nay,  the  fhip  itfelf  is 
made  to  contribute,  though  the  jaSlurah  made  neceffary,  not  by  the  weight  of 
the  fliip,  but  by  that  of  the  cargo : — on  the  other  hand,  paflengers  are 
exempted  altogether  from  contributing,  for  a  very  whimfical  rcafon  ;  that  the 
value  of  a  free  man  cannot  be  eftimated  in  money:  and  yet  paflengers  frequent- 
ly make  a  great  part  of  the  load: — if  they  contribute  to  the  necelfity  of  difl^ur- 
dening  the  fliip,  for  what  good  reafon  ought  they  to  be  exempted  from 
contributing  to  make  up  the  lofs  of  the  goods  which  were  thrown  into  the  fea 
upon  their  account  ? — Lord  Kaim:>  Piin,  of  Equ.  116,  117,  118. 

3.  What  are  we  to  confider  under  the  denomination  of  goods  preferved, 
and  thence  liable  to  contribution  ? — My  anfwer  is,  all:  in  the  fame  manner  as 
in  the  cafe  of  goods  thrown  overboard. — But  are  the  xcages  of  matters  and 
failorshere  included.^ — Intheatteltations  from  Amfterdam  and  Rotterdam  made 
before  the  fupreme  court  in  July  1628,  it  was  exprefl  to  be  cufl;omary  that 
the  mafter's  wages  contributed  equally  with  goods  preferved.  It  was  adjudged 
in  like  manner  by  the  fame  court  in  May  1630.  But  in  one  of  thofe  atteftati- 
ons  it  is  added  that,  this  held  only  when  the  goods  are  valued  at  the  price  of  the 
market  to  which  they  are  bound,  as  was  then  the  cafe ;  but  not,  if  at  the  price 
of  the  market  where  they  were  bought. — Accordhig  to  thefe  atteftations,  the 
feamans  zuages  were  alfo  liable  to  contribute  ;  but  with  this  claufe,  that  from  the 
fmallnefs  of  their  value  they  were  ufually  overlooked  :  the  fupreme  court  did 
alfo  at  the  fame  time,  in  cafes  of  contribution,  indemnify  the  mafter  from  the 
demands  of  the  failors  on  account  of  wages :  thus  far  was  decreed  relatively  to 
a  fliip  preferved : — but  what  in  cafe  it  fliould  be  loft.'^  In  April  1674,  the 
lawyers  who  were  confulted  on  fuch  an  emergency  made  anfwer,  that  the  wages 
of  the  mafters  and  failors  of  a  fliip  run  down  after  performing  half  it's  voyage, 
fliould  be  charged  with  contribution  as  being  then  due  :  but  others  about  the 
fame  time  thought  otherwife. — There  is  no  lefs  difpute  and  altercation  whether, 
when  a  fliip  has  rim  doxon  another  whofe  cargo  was  infured,  in  the  eftimation  of 
it's  value,  the  premium  for  infurance  is  to  be  dedufted  ?  But  I  fliall  not  dwell 
on  thefe  and  the  like  minutiae. — Bynkerjliock  OiLcJl.jur.  priv.  lib.  4.  c.  21. 

4.  Certainly  it  has  been  mofl;  clearly  ordained  that  there  is  caufe  for 
contribution,  as  well  in  the  cafe  of  fliips  dejignedly Jleered  ajliore,  as  when  the 
appurtenances  have  been  thrown  overboard  on  account  of  danger : — whence 
this  queftion  has  arifen,  what  fays  the  law  when,  after  a  fliip  in  confequence 
of  a  fl:orm  is  faft  aground,  the  mafter  unloads  the  goods  fafe,  and  the  (hip 
founders  ? — Some  aflcrt  that  the  proprietors  ought  to  contribute  as  if  the  fhip 
had  funk  in  confequence  of  the  prefervation  of  the  goods  :  I  think  this  aflertion 
unfounded  ;  for  no  damage  was  done  in  order  to  Jove  the  goods,  which  is  the 

fole 


CONTRIBUTIOK. 


133 


fole   reafon  for  contribution  ;    but   the  fhip    while    unloading   periflied,    by 

remaining  faft  aground  :    nothing  therefore  ought  to  be  contributed. But 

notwithflanding  the  lofs  of  the  fhip,  xoages  are  due  to  the  mafter,  if  he 
employed  other  fliips  or  boats  at  his  expence,  in  the  prefervation  of  his 
owner's  property  : — and  thus  it  was  juftly  decided  by  the  fupreme  fenate  in 
February  1707,  when  I  was  prefent,  againft  certain  merchants  of  Amfterdara, 
who  denied  their  owing  wages  ;  and  indeed  contended  with  their  utmoft  might 
and  main,  that  the  money  which  they  had  expended  to  fave  their  goods  ought 
to  be  deduced: — but  when  no  fault  is  alleged  on  the  part  of  the  mafler, 
according  to  a  decree  made  in  February  1686,  by  the  judges  appointed  over 
maritira.e  affairs,  that  money  is  not  to  be  dedu6ted.  The  fcabini  of  Amflerdani 
decided  to  the  contrary  in  November  1687  ;  but  the  court  in  confequence  of 
an  appeal  did,  in  April  1698,  and  afterwards  the  fenate,  at  the  time  I  have 
mentioned  did  alfo,  confirm  the  fentence  qf  thofe  judges  ;  by  reafon  that 
money  was  expended  in  the  prefervation  of  thofe  very  goods,  and  is  not 
chargeable  to  the  feamen  any  more  than  the  fpoiling  of  goods,  which  happens 
without  their  being  any  ways  in  fault." — dbid.  c.  24. 

5.  There  is  no  doubt  but  money  dX^o  fliould  contribute; — the  law,  it  has 
been  reported,,  was  formerly  otherwife  ;  and  Weytferi  has  enumerated  the 
arguments  on  each  fide  of  the  queftion  ;.  but  thofe  are-xnuch  the  flrono^efl  that 
militateybr  the  contribution  of  money  :  but  there  is  no  occafion  for  difpute 
when  the  law  fpeaks  in  fuch  exprefs.  terms  as  it  does  at  prefent :  exception 
however  is  made  of  that  money  which  a  perfon  has  been  ufed  to  carry  about 
him  :  hence  even  precious  Jloncs,  and  ornaments  o^ gold  Sind/dver  coninhxxiQ 
though  they  may  have  been  ufually  worn  by  the  k^mtn.-r-Ibid. 

6.  The  mafler  of  a  fhip  in  Augufl  1712,  had  received  goods  on  board 
to  be  carried  for  a  ftipulated  freight  from  Amfterdam  to  Cadiz  ;  but  on 
condition  that  he  fhould  fail  under  convoy  of  a  man  of  war  to  Lifboh,  or  to 
Cadiz  itfelf: — he  failed  accordingly  with  many  other  fhips  under  that  convoy; 
and  when  near  that  port  there  chanced  to  be  in  thofe  feas  feveral  privateers, 
by  which  fome  of  thofe  fhips  were  captured :  the  man  of  war  made  hereupon 
a  fignal  for  the  other  fliips  to  fail  for  Lifbon  ;  and  there  the  mafler  of  the  fhip 
in  queflion  remained  full  fix  months  and  more,  before  he  arrived  or  could 
fafely  arrive  at  Cadiz,  his  intended  port : — this  delay  in  his  voyage  occafioned 
additional  expences  in  provifions  and  feamen  s  -wages :  thefe  expences  being 
incurred,  as  the  mafler  alleged,  for  the  prefervation  of  both  the  fhip  and 
cargo,  and  occafioned  by  a  certain  and  imminent  danger,  he  required  in 
geometrical,  proportion  from  the  owners  of  the  cargo  : — and  he  obtained  his 
requefl  from  the  judges  appointed  over  maritime  affairs  at.Amflerdam  in  June 
1714,  from  the  fcabini  in  November  1715,  and  from  the  court  of  Holland  in 
July  1717. — An  appeal  was  made  from  the  juflice  of  this  fentence  to  the 
fenate  :  the  certain  and  imminent  danger  as  alleged  was  admitted,  as  alfo 
that  the  voyage  was  delayed  not  by  2l  fortuitous  accident,  but  wilfully  and 
defignedly,  in  order  to  avoid  that  danger. — A  cafe  of  this  nature  is  unknown  in 

LI  the 


134 


CONTRIBUTION. 


the  Roman  law,  and  difcuflions  about  tlie  recovery  of  damages  are  hardly 
known  unlefs  in  cafes  of  fliipwreck  :  but  the  cuftoms  which  prevail  at  the 
prefent  time  extend  the  contribution  to  all  kind  of  danger  ;  and  in  the 
damao-es  thence  arifmg  often  comprehend  the  additional  ranges  and  provifions 
of  the  Ihip's  company  : — undoubtedly  as  the  fame  laws  are  founded  on  the  fame 
reafoning,  it  cannot  be  denied  that  whatever  the  Roman  laws  require  in  cafes 
of  merchandife,  &c.  thrown  overboard,  is  to  be  found  in  this  prefent  cafe.— 
But  what  if  the  mafter  of  a  fhip  on  the  rifing  of  a  ftorm,  or  on  hearing  that 
pirates  were  cruifing  here  or  there,  (liould  determine  to  put  into  fome  port, 
and  there  to  remain  ;  fhall  we  then  charge  to  the  owners  of  the  cargo,  the 
expences  accruing  from  this  protra6lion  of  the  voyage  ? — it  is  difficult  to  tell 
of  what  immenfe  prejudice  fuch  methods  of  proceeding  would  prove  to 
commerce  : — and  this  argument  was  urged  by  a  fenator  of  great  weight  among 
us,  acrainji  the  payment  of  contribution  :  the  reft  however  were  for  contri- 
bution, as  the  owners  of  the  cargo  had  forbid  the  failing  of  the  Ihip  without 
convoy,  and  without  it  there  was  moft  imminent  danger : — befides  that, 
according  to  the  Roman  and  Rhodian  law,  the  price  of  redemption  comes 
under  contribution  ;  and  in  the  prefent  cafe,  the  voyage  being  protrafted  from 
neceffity,  feemed  to  ftand  in  the  ftead  of  redemption  : — for  thefe  reafons  the 
fenate  approved,  in  May  1721,  of  all  the  fentences  that  had  been  given  without 
making  any  alteration. — Ibid.  c.  25,  26. 

A 

7.  If  a  lighter ,  Jkiff,  or  the  fhip's  boat,  into  which  part  of  the  cargo  is 
unladen,  to  lighten  the  fliip,  perilh,  and  the  fliip  be  preferved,  in  that  cafe 
contribution  is  to  be  made  ;  but  if  the  fhip  be  caft  away,  and  the  lighter, 
boat,  or  fluff  be  preferved,  there  no  contribution  or  average  is  to  be  had,  it 
being  a  rule,  "  no  contribution,  but  where  the  fliips  arrive  in  fafety." — 
Lex  Merc,  rediv.  136. 

8.  The  reafon  why  both  law  and  cuflom  excu^ejailors  from  contributing, 
can  have  been  no  other,  than  to  engage  them  the  readier  to  confent  to  a 
jettifon,  and  not  expofe  themfelves  too  much,  and  thereby  rifque  the  whole  ; 
which  a  Ihare  in  the  lofs  might  lead  them  to  do  : — 1  Mag.  71. 

9.  It  is  not  cuftomary  for  the  King's  goods  to  contribute  to  any  average  ; 
nor  are  fuch  goods,  or  any  part  thereof  that  may  happen  to  be  thrown  over- 
board,  paid  for. — ibid.  172. 

10.  Case. — 'The  plaintiff" being  one  of  the  owners  of  a  fliip,  loaded  on 
board  her  210  tons  of  oil,  and  the  defendant  loaded  on  board  her  80  bales  of 
filk  upon  freight,  by  contraft,  both  to  be  delivered  at  London  ;  the  fhip 
was  purfued  by  enemies,  and  forced  into  a  harbour,  &c.  and  the  mafter 
ordered  the  filk  on  fhore,  being  the  moft  valuable  commodity  (though  they 
lay  under  the  oils,  and  took  up  a  great  deal  of  time  to  get  at  them)  : — the  fhip 
and  oils  were  afterwards  taken,  and  the  owner  of  the  oils  brought  his  bill  to 
have  contribution  from  the  owner  of  the  fiik :    and  although  it  was  admitted 

that. 


CONTRIBUTION. 


1.35 


that,  if  goods  were  thrown  overboard  in  ftrefs  of  weather,  or  in  danger  or 
juft  fear  of  enemies,  in  order  to  fave  the  fliip  and  the  reft  of  the  cargo,  that 
M'hich  is  faved  fhall  contribute  to  a  reparation  of  that  which  is  loft ;  and  the 
owners  of  the  fliip  ftiall  be  contributers  in  proportion ;  yet  in  this  cafe  the  lofs 
of  the  oils-  did  not  fave  the  filks,  neither  did  the  faving  the  filks  lofe  the  oils  : 
and  the  bill  was  difmifl'ed  accordingly  ;  which  difmiftion  was  confirmed  in  the 
houfe  of  lords. — Show.  P,  C.  18,  ig. 


11.  The  ftated  account  of  the  cofts  and  damages  ftiall  be  made  at  the  fuit 
of  the  mafter,  at  the  place  where  the  fliip  unloads ;  and  the  goods  thrown  over- 
board, and  thofe  fa\ed  or  preferved  ftiall  be  valued  at  the  price  there  current. 

For  the  payment  of  lofles  and  damages,    a  repartition  ftiall  be  made  on 

the  loft  effefts  and  thofe  faved,  and  on  half  the  ftiip  and  freight,  fo  much  per 
cent.  [N.  B.  I  apprehend  it  to  be  the  gro/s freight  of  the  goods  on  board, 
which  ftiall  contribute  for  one  half ;  and  that  the  other  half  is  fuppofed  to  be 

abforbed  or  funk  by  the  charges  of  wages,  provifons,   &c.~] That  judgment 

may  be  formed  of  the  quality  of  the  goods  thrown  overboard,  the  bills  of  lading 

and  invoices  if  any,  ftiall  be  exhibited. If  the  true  quality  of  any  goods 

ftiould  be  concealed  in  the  bill  of  lading,  and  that  they  ftiould  be  found  of 
greater  value  than  declared  by  the  ftiipper,  they  ftiall  contribute  in  cafe  they 
be  faved,  for  their  true  value,  and  if  loft  they  ftiall  not  be  paid  for  but  as  they 

are  fet  forth  in  the  bill  of  lading. If,  on  the  other  hand,  the  goods  are 

found  of  an  inferior  quality,  and  they  be  faved,  they  ftiall  contribute  on  the 
footing  of  the  declaration  made  ;   and  if  they  be  thrown  overboard  or  damaged, 

they  ftiall  only  be  paid  for  on  their  real  value. Ammunition,    and  ftores, 

wages  or  hire,  and  clothes  of  feamen,  fliall  not  contribute  towards  the  jettifon  : 
neverthelefs    whatfoever  of  them  Ihall  be  thrown  overboard  fliall  be  paid  for 

out  of  the  other  effefts. Thofe  goods  or  effefts  for  which  there  fliall  have 

h^Qn  no  bill  of  lading,  if  thrown  overboard,  fhall  not  be  paid  for  ;  but  if  any 
are  faved  they  fliall  contribute  their  proportion.  [N.  B.  The  meaning  can 
only  be,  that  if  any  goods,  whereof  no  bills  of  lading  were  given  to  be  figned 
are  defignedly  concealed  aboard,  by  the  officers,  failors,  or  paffengers,  to 
defraud  the  fliip  of  it's  freight,  fuch  goods  thrown  overboard  (hall  not  be  paid 
for ;  as  a  penalty  to  hinder  concealment ;  but  that  when  a  fliip  is  upon  it's 
departure,  and  for  want  of  time  figns  no  bill  of  lading,  it  cannot  be   of  any 

prejudice  to  the  fliipper.]] Nor  fliali  any  contribution  be  demanded  for 

goods  thrown  overboard  or  damaged,  if  they  lie  upon  deck ;  but  they  fhall 
bear  their  part    if  faved :     the   owner,   however,  may,   in  this   cafe,   have 

recourfe  againft  the  mafler.- Nor  fliall  any  thing  be  contributed  towards  any 

damage  done  the  veffel,  except  it  was  exprefsly  done  to  facilitate  the  jettifon. 

If  the  jettifon  fave  not  the  fliip,  there  fliall  be  no  contribution  ;    and  thofe 

goods  that  may   be  faved  after  fhipwreck,  fhall  not  be  liable  towards  the 

payment  or  making  good  of  thofe  thrown  overboard,  or  damaged. But 

if  a  veffel  fhall  have  been  faved  by  a  jettifon  made,  and  purfuing  it's  voyage 
fhall  afterwards  be  loft,  the  effefts  faved  from  a  fhipwreck  (hall  contribute 
towards  the  jettifon,  according  to  their  value,  in  the  condition  they  may  be 

found. 


136  C    O    N    T    R    1    B     U    T    I    O    N. 

found,  the  charges  oi  falvoge  firfl  dedufted. The  goods  thrown  overboard 

Ihall  in  no  wife  contribute  towards  the  payment  of  damages  happening  ofier 
the  jettifon  to  the  effeftsfaved  :   [N.  B.  The  meaning  is,   towards  it's  particular 

damage]  nor  the  goods  towards  the  payment  of  the  loft  orftranded  fliip. • 

However,  if  the  Ihip  be  cut  into,  or  ripped  open,  by  the  agreement  of  the 
crew,  and  the  merchant,  if  on  board,  in  order  to  get  to  the  goods,  the  goods 
(liall  contribute  towards  the    making  good- the  damage  done  to   the   veilel  to- 

get  them  out. If  goods  put  into  lighters,  in  order  to  lighten  a  veilel,    to 

facilitate  her  coming  into  port,  be  loft,  a  repartition  ftiall  be  made  of  their 

value  upon  the  fliip  and  her  whole  lading. But  if  the  J/iip  be  Inji  with  the 

remainder  of  the  cargo,  no  repartition  fliall  be  made  on  the  goods  put  into 

lighters,  though  they  arrive  fafe. If  any  liable  to  contribute  refufe  to  pay 

their  fhare,   the  mafler  may  detain,  and  even  fell  juridically,  of  their  goods 

to  the  amount  of  their  part. If,  after  a  repartition  made,  the  efte6ls  thrown 

overboard  be  recover ed.hy  the  owners,  they  fhall  be  obliged  to  return  to  the 
mafter  and  others  concerned,  what  they  fliall  have  received  for  their  part  of 
the  contribution,  dedufting  the  damage  that  may  have  been  caufed  by  the 
jettifon,   and  the  charges  of  the  recovering. — Ordin.  of  France. 

>M2.  All  provifions  and  warlike  ftores,  neceftary  to  the  prefent  voyage, 
the  bottomry  money  dependent  on  the  ftiip,  any  worn  clothes,  both  of  the 
paffengers,  the  mafter  and  his  men,  together  with  their  wages,  chefts,  and 
neceflaries,  fliall  not  come  tnider  average  ;  but  ho.  free  from  all  contribution  : 
yet  any  {\xc\\  provifions  and  effects  of  the  ftiip's  company,  being  upon  neceffity 
thrown  overboard  or  damaged,  fliall  be  made  good  by  a  general  contribution, 

as  grofs  average. At  the  ftating  of  the  grofs  average  all  goods  and  mer- 

chandife  are  to  be  fet  down  in  the  contribution  according  to  the  razrktl-price 
at  the  time  of  their  arrival  at  the  port   where  they  are  delivered ;    however 

with  a  deduftion  of  the  freight  and  other  charges  to  be  paid  there. The 

like  fhall  alfo  be  particularly  obferved  in  eftimating  fuch  goods  and  merchan- 
difes  as  had  been  thrown  overboard  or  loft  ;  they  being,  both  in  regard  of 
the  contribution  to  which  they  are  bound,  and  of  the  general  connexion,  to 
the  benefit  of  which  they  are  entitled,  to  be  rated  according  to  their  value  at 
their  arrival  at  the  port  to  which  they  were  configned  had  they  been  faved ; 
but  thofe  goods  which  were  damaged  by  a  misfortune  or  mere  accident,  but 
afterwards,  upon  average,  thrown  into  the  fea,  muft  not  be  rated  beyond 
their  value  at  the  time  of  their  being  thrown  overboard  ;  but  the  damages 
refulting  from  the  misfortune  fliall  be  determined  and  rated  according  to  the 

depohtion  of  the  mafter  and  his  people. Any  owner,   after  average  and 

indemnification,  recovering  his  goods,  either  the  whole  or  in  part,  fliall  pay 
back  to  the  feveral  contributors  their  refpeftive  quotas  according  to  the  value 
of  the  goods  recovered,  deducing  withal  the  charges  of  fuch  recovery. — 
Ordin.  of  Konigfb. 

13.     If  the  fliip,  out  of  which  goods  were  thrown  in  diftrefs,  be  loft,  and 
nothing  of  it  is  afterwards  faved,  but  fome  of  the  goods  tlirown  overboard, 

happened 


CONTRIBUTION.  137 

happened  to  be  faved,  the  owner  of  thefe  faved  goods  is  not  to  contribute 
any  thing  towards  the  fhip  or  cargo,  as  the  lafl  loft  goods  cannot  be  fliid  to 
have  contributed  any  thing  to  the  favingof  the  fliip  and  goods  ;  but  wliat  is 
thus  faved  of  the  goods  ejefted  fliall  belong  only  to  the  owner  upon  paying 
the  falvage  and  other  charges  ;  but  if  fucli  were  infured,  what  is  faved  of  them 
falls  to  the  infurers  who  pay  the  whole  lofs,    when  it  exceeds  three  per  cent. 

Goods  brought  from  on  board  in  boats,    prahms,  barkSj  barges,  lighters, 

or  other  vefl'els,  to  the  place  of  difcharge  fpecified  in  the  policy,  wliither  the 
fliip  cannot  come  up,  and  loft ;  this  lofs  effects  aU  the  other  goods  and  loading 
of  the  Ihip. — Ordin.  of  Copenh. 

14.  If  it  happens,  that  a  fliip  on  arrival  in  fight  of  any  port  that  flie  wants 
to  enter,  by  reafon  of  a  ftorm,  or  without  it,  or  in  view  of  that  flie  is  bound 
to,  to  get  in  is  obliged  to  deliver  part  of  her  cargo  by  boats  to  lighten  her ; 
and  it  happens  that  the  faid  boat  is  afterwards  loft  ;  in  this  cafe,  all  the  value 
of  the  effecisloft  in  her  fhall  come  into  a  grojs  average,  and  fliall  be  paid  by 
the  other  goods  that  are  faved  in  the  lightened  fliip,  whofe  value  and  freight 
fliall  likewife  enter  pro  rata  in  it :  and  on  the  contrary,  if  it  happens  that  the 
faid  boat,  or  other  veffel,  to  which  the  faid  effefts  were  removed,  fliall  be 
faved,  and  the  faid  lightened  fliip  loft,  the  goods  faved  fliall  not  contribute  to 
the  faid  grofs  average  ;  but  only  to  the  petty  charges  of  freight  of  the  boat 
faved,  and  a  proportionable  part  of  the  freight  of  the  fliip  loft  ;  and  if  both 
the  veffels  are  loft,  and  afterwards  fome  of  the  merchandife  that  remained  in 
the  fhip  be  recovered,  the  lofs  of  thofe  which  periflied  in  the  faid  boat,  fliall 
not  be  made  good  out  of  thefe  ;  becaufe  the  intention  or  end  for  which  the 
tranflation  was  made,  was  not  obtained. — Ordin.  of  Bilb.    ■ 

15.  In  regulating  a  contribution,  at  the  price  the  cargo  would  have 
obtained  at  the  place  of  difcharge,  the  freight  and  charges  ought  to  be  dedu6led 
from  the  value  of  the  goods  faved,  as  well  as  the  freight  from  that  of  the  effefts 

thrown  overboard,  or  loft. — 2   Valitis  Conim.  ig-j. There  is  no  doubt  but 

money,  bills,  rings,  and  jewels,  as  alfo  wearing  apparel  (except  fuch  as  each 
perfon  daily  carries  about  him)  ought  to  enter  into  the  contribution,  together 
with  other  efie6ts  in  chefts  and  trunks. — Ibid,  ^oo:  -rrn  "^o    ' 


c 

■a- 


16.  The  valuation  put  by  a  mafter  or^owjier.of  g.  fliip  in  a  policy,  regards 
only  the  infurers,  and  pot  the  otherireighters  or  the  concerned  in  the  fhip  ; 
who  ought  always  to  make  him  .contribute,  mor^  Of;  Icfs,  according  to  a 
jw/Z  elliipation. — 2  Afa^.  33^.,  , 

17.  See  Accident,  .Average,  Bottomry,  Bounty,  Community,  Cutting,  Dou- 
^^^''t'^lIkXAnce-y  Freight,  General- Aver  age.  Goods,  Jettifon,  Lighter,  Majler, 
FrovifionSf  Ranfom,  Regulation,  Robbery,  Running-Foul,  Sailuis'  Wages,  Salt, 
Salvage,  Ship,   Valuation,  Wages. 


Mm  CONVOY. 


[    138    ] 


CONVOY. 

1.  /CONVOY,  means  a  fleet  or  navy  of  merchant-fliips  bound  on  a  voyage 

V»^  to   fome   port  or  general  rendezvous. Convoy  alfo  implies  the 

fliip  or  fhips  appointed  to  conduft  and  defend  them  on  their  paflage  thither. 
-^Falc.  Mar.  Did. 

2.  Convoys,  in  a  war,  are  appointed  for  the  fafety  of  merchant-fliips, 
vho  fail  in  fleets  under  their  care  and  prote6lion  ;  and  even  in  times  of  peace, 
fome  are  ordered  by  the  government  to  guard  and  defend  our  trading  vefl'els 
from  the  affaults  of  pirates,  or  encroachers  on  our  commerce,  more  efpecially 
in  our  fiflieries,  and  other  parts  of  the  Wefl;-Indies,  where  they  may  be 
expofed  to  fuch  attacks,  or  commercial  intruders ;  and  the  failing  of  fuch 
convoys  are  publickly  advertifed,  and  the  days  fixed  for  their  departure,  that 
fliips  may  get  to  the  rendezvous,  or  deftined  places,  by  the  times  appointed, 
and  there  receive  orders  from  the  commanding  officer,  relative  to  their  future 
proceedings ;  which  the  majlers  muft  take  care  punftually  to  obferve,  other- 
wife  they  only  will  be  anfwerable  for  any  lofs  or  m  fcarriage,  that  may  happen 
through  fuch  a  negleft ;  but,  on  the  contrary,  if  the  fault  lies  on  the  commo- 
dore, he  is  made  punifliable  by  the  fubfequent  laws. 

3.  By  Stat.  i^Car.2.  ft.  1.  c.  9.  f.  1.  art.  13. — The  captains,  officers,  and 
feamen,  of  all  fhips  appointed  for  convoy  of  merchant-fliips  or  others,  fliall 
diligently  attend  upon  that  charge,  without  delay,  according  to  their  inftruc- 
tions  ;  and  whofoever  fliall  be  faulty  therein,  and  fliall  not  faithfully  defend 
the  {hips  and  goods  in  their  convoy,  or  fhall  demand  any  money,  or  reward, 
from  any  merchant  or  mafter  for  convoying  of  fuch  fliips  belonging  to  his 
Majefty's  fubjefts,  fliall  be  condemned  to  make  reparation  of  the  damage,  as 
the  court  of  admiralty  fliall  adjudge,  and  alfo  be  punijhcd  criminally  by 
pains  of  death,  or  other  punifliment,  as  fliall  be  adjudged  by  the  court- 
martial. Confirmed  by  22  Geo.  2.  art.  17. 

4.  The  cuftom  of  appointing  convoys,   in  France,  is  very  ancient,  as 

appears  by  the  ordinance  of  1517. — By  that  of  the  21ft  of  February  1691,  the 

penalty  of  difobedience  to  the  orders  of  the   commander  of  the  convoy  was 

Amply,  for  the  majler  to  ferve  during  a  year,  as  a  common  failor  aboard  the 

king's  fliips ;  and  for  tlie  owner,  who  fliould  have   given  him  order  to  leave 

the  convoy,  a  fine  of  3OO0livres  : — by  another  ordinance  of  the  i3thof  Auguft 

1692,  the  penally  on  the  mafter  is   fix  months  imprifonment,  and  a  fine  of 

1500  livres,  payable  jointly  with  the  owners : — another  ordinance  of  the  i6th  of 

February   1695,   condemned  the  mafter  in    1000  livres,  and   declared  him 

incapable  of  commanding  any  vefl'els  whatfoever  afterwards,  unlefs  there  was 

fome  juft  reafons  for  leaving  the  convoy  : — -and  by  the  laft  ordinance  to  this 

purpofe,  of  the  14th  of  May  1745,  now  in  force,  the  punifliment  of  the  mafter 

is,  a  fine  of  1000  livres,  a  year's  imprifonment,  and  to  be  rendered  incapable 

'    •  •  afterwards 


CONVOY.  139 

afterwards  of  commanding  any  vefiel. — — The  punifhments  inflitled  upon 
the  commodores  of  convoys,  m  cafes  of  negligence  and  mifconduft,  are  like- 
wife  fevere,  as  in  England. 

5.  Case. — A  policy  was  to  infure  the  William  galley  in  a  voyage  from 
Bremen  to  the  port  of  London,  ■warranted  to  depart  with  convoy : — the 
galley  fet  fail  from  Bremen  under  convoy  of  a  Dutch  man  of  war,  to  the  Elbe, 
where  they  were  joined  with  two  other  Dutch  men  ofM^ar,  and  feveral  Dutch 
and  Englilh  merchant-fhips ;  whence  they  failed  to  the  Texel,  where  they 
found  a  fquadron  of  Englilh  men  of  war,  and  an  admiral  : — after  a  flay  of 
nine  weeks  they  fet  out  from  the  Texel,  and  the  galley  was  feparated  in  a 
dorm,  and  taken  by  a  French  privateer,  taken  again  by  a  Dutch  privateer, 
and  paid  Sol.  falvage. — It  was  ruled  by  Holt,  chief  juftice,  that  the  voyage 
ought  to  be  according  to  ufage,  and  that  their  going  to  the  Elbe,  though  in 
faft  out  of  the  way,  was  no  deviation ;  for  'till  the  year  1703,  there  was  no 
convoy  for  (hips  direftly  from  Bremen  to  London  :  and  the  plaintiff  had  a 
verdift. — 2  SalL  445.  Feb.  14,  1704. — Bo7id  v.  Gonfales. 

6.  Case. — The  plaintiff  infured  on  goods  in  the  John  and  Jane,  from 
Gottenburgh  to  London,  with  a  warranty  to  depart  with  convoy  from  Fleckery  : 
in  July  1744,  the  (hip  failed  from  Gottenburgh  to  Fleckery,  and  there  fhe 
waited  for  convoy  two  months :  on  the  twenty-firfl  of  September  at  nine  in 
the  morning,  three  men  of  war,  who  had  an  hundred  merchant-fhips  in  convoy, 
flood  off  Fleckery,  and  made  a  fignal  for  the  (hips  there  to  come  out,  and 
likewife  fent  in  a  yaul  to  order  them  out :  there  were  fourteen  fhips  waiting, 
and  the  John  and  Jane  got  out  by  twelve  o'clock,  and  one  of  the  firft ;  the 
convoy  having  failed  gently  on,  and  being  two  leagues  a-head :  it  was  a  hard 
gale,  and  by  fix  in  the  afternoon  came  up  with  the  fleet,  but  could  not  get  to 
either  of  the  men  of  war  {ox  failing  orders,  on  account  of  the  gale  of  wind  : 
it  was  flormy  all  night,  and  at  day-break  the  ftiip  in  queflion  was  in  the  midfl 
of  the  fleet,  but  the  weather  was  fo  bad  that  no  boat  could  be  fent  for  failing 
orders. — A  French  privateer  had  failed  amongft  them  all  night,  and  the  22d, " 
it  being  foggy,  attacked  the  John  and  Jane  about  two,  who  kept  a  running 
fight  till  dark,  which  was  renewed  the  next  morning,  when  file  was  taken.  ■  - 
For  the  defendant  it  was  infifted,  that  this  fhip  was  never  under  convoy,  nor 
is  ever  confidered  fo  'till  they  have  received  failivg  orders  ;  and  if  the  weather 
would  not  permit  the  captain  to  get  them,  he  fhould  have  gone  back : — but 
the  chief  juftice  and  jury  were  both  of  opinion  that,  as  the  captam  had  done 
every  thing  in  his  power,  it  was  a  departing  with  convoy  ;  and  thefe  agree- 
ments are  never  confined  to  precife  words  ;  as  in  the  cafe  of  departing  with 
convoy  from  London,  when  the  place  of  rendezvous  is  Spithead  ,  a  lofs  in 
going  thither  is  within  the  policy  : — fo  that  the  plaintiff  recovered. — Siran. 
1250,  19  Geo.  2. — Viclorin  v.  Cleeve. 

7.  Case. — On  an  infurance  from  London   to   Gibraltar,   xcarranted  to 
depart  with  convoy,  it  appeared  there  was  a  convoy  appointed  for  that  trade 

to 


140  CONVOY. 

to  Spithead,  and  the  fhip  Ranger  having  tried  for  convoy  in  the  Downs, 
proceeded  for  Spithead,  and  was  taken  in  her  way  thither  : — the  infurers 
infilled  that  this  being  the  time  of  a  French  war,  the  fhip  fiiould  not  have 
ventured  through  the  channel,  but  have  waited  in  the  Downs  for  an  occafional 
convoy;  and  many  merchants  and  office-keepers  were  examined  to  that 
purpofe  : — 'but  the  chief  jullice  held  that  the  fhip  was  to  be  confidered  as 
under  the  defendant's  infurance  to  a  place  of  general  rendezvous,  according 
to  the  interpretation  of  the  words  "  warranted  to  depart  with  convoy  :" — 
Salk.  443,  445  : — and  if  the  parties  meant  to  vary  the  infurance  from  what  is 
commonly  underflood,  they  fliould  have  particularized  her  departure  with 
convoy  from  the  Doxons. — The  juries  were  compofed  of  merchants,  and  in 
both  cafes  found  for  the  plaintiffs  upon  the  flrength  of  this  dire6iion. — Stran. 
1265.  20  Geo.  2. — Gordon  v.  Morley, — and  Campbell  v,  Bourdieu. 

8.  Case. — Aftion  on  a  policy  of  infurance  ;  the  defendant  pleaded  non 
affumpfit,  and  the  jury  found  the  policy,  by  which  the  infurers  undertook 
againll  the  perils  of  the  fea,  pirates,  enemies,  &c.  from  London  to  Venice, 
warranted  to  depart  with  convoy :  et  per  cur.  the  words  warranted  to  depart 
with  convoy,  mean  only  that  he  will  leave  the  port,  and  fail  with  the  convoy 
without  any  voilful  default  in  the  mailer : — therefore,  if  by  default  of  the 
mafler,  the  fhip  is  feparated  and  taken,  the  infurers  are  not  liable  ;  but  if 
there  be  no  default,  the  mafler  having  done  all  that  could  be  done,  and  the 
fliip  is  taken,  they  are  liable  :  fo  if  the  fhip  be  lofl  by  flrefs  of  weather ;  for 
they  infure  againll  thefe  by  their  own  agreement. — 2  Salk,  443.  Hill.  2  W. 
and  M.  in  B.  R. — Jefferies  v.  Legandra. — S.  C.  3  Lev.  320. '  4  Mod.  58. 
1  Show.  320.  Carth.  216.  Holt's  Rep.  465. 

.  9.  Case. — Aftion  on  a  policy  of  infurance  by  the  defendant  at  London, 
infuring  a  fhip  from  thence  to  the  Ea't-Indies,  warranted  to  depart  with 
convoy  ;  and  fliews,  that  the  fhip  went  from  London  to  the  Downs,  and  from 
thence  with  convoy,  and  -was  lofl  :-^after  a  frivolous  plea  and  demurrer,  the 
pafe  flood  upon  the  declaration  ;  to  which  it  was  objefted,  that  there  was  a 
departure  without  convoy  :  et  per  cur.  the  claufe  "  warranted  to  depart  with 
convoy,"  muft  be  conflrued  according  to  the  ufagc  among  merchants,  i.  e. 
Ccon^fuch  place,  where  convoys  are  to  be  had,  as  the  Downs,  &c. : — Holt, 
chief  juftice,  contra,  we  take  notice  of  the  laws  of  merchants  that  are  general, 
not  of  thofe  that  are  particular  ufages :  it  is  no  part  of  the  law  of  merchants 
to  take  convoy  in  the  Downs. — 2  Salk.  443.  Mich.  4.  W.  and  M.  in  B.  R. 
"r-J^cthidier  s  Cafe. 

lOi"""  Case. — The  plaintiffs  being  merchants  refiding  at  Gibraltar,  and  one 
of  them  coming  to  London  to  purchafe  goods  fit  for  that  place,  boirght  to 
near  the  value  of  Qoool.  and  in  order,  to  forward  them  to.  the  aforefaid 
place,  he  took  freight  on  the  fliip  Ranger,  Capt.  Taylor,  which  he  faw  put 
up,  as  ufual,  at  the  Roval-Exchange  and  Portugal  coffee-houfe,  with  a  decla- 
ration inferted  in  the  faid  advertifement,  that  the  fhip  was  to  fail  with  the  firfl 

convov  ; 


CONVOY. 


141 


convoy ;  and  in  confequence  thereof  he  fhipped  his  merchandife  and  made 
infurance  thereon  to  the  amount  of  2,830!.  and  inferted  in  the  policy  the 
words  warranted  to  depart  xoith  convoy,  in  conformity  with  the  faid  decla- 
ration : — the  fhip  when  loaded  failed  from  Gravefend  the  4th  of  May  1746, 
on  her  voyage,  and  arrived  in  the  Dov/ns  the  7th,  where  flie  continued  till 
the  12th,  in  company  with  the  Otter  (loop  of  war,  fome  Englifh  merchant- 
fliips,  and  three  Dutch  Eafl-India  fliips : — Captain  Taylor,  whilfl  he  lay  in  the 
Downs,  having  received  intelligence  that  the  convoy  at  Spithead  was  ready 
to  fail,  went  on  board  the  Otter  floop,  in  order  to  folicit  the  commander's 
taking  him  under  his  proteftion  to  Spithead  ;  but  this  the  faid  gentleman 
informed  him  was  not  in  his  power  to  comply  with,  as  he  was  ordered  on  a 
cruife  over  to  the  coaft  of  France  :  whereupon  Captain  Taylor  went  on  board 
the  commodore  of  the  Dutch  Eafl-India  fhips,  who  promifed  to  take  the 
Ranger  under  convoy  to  Spithead  : — on  the  12th  of  May,  the  Otter  floop,  the 
Dutch,  and  the  Ranger  vv'eighed  anchor,  as  did  alfo  fome  Englifh  fliips  for  the 
benefit  of  that  convoy ;  and  a  few  hours  after  they  were  under  fail,  the  Otter 
floop  parted  from  them  on  her  cruife,  and  the  Ranger  kept  company  with  the 
three  Dutch  fliips,  'till  between  four  and  five  o'clock  the  next  afternoon, 
being  the  1,3th,  when  in  her  direft  courfe  to  Spithead  flie  was  attacked  by  a 
French  privateer,  called  the  Refouixe,  within  three  miles  of  the  Dutch  Eafl- 
India-men,  and  eighteen  of  Spithead,  where  fhe  was  to  join  the  convoy  for 
Gibraltar  ;  and  after  fome  refinance  fhe  was  taken  and  carried  into  Havre-de- 
Grace,  and  there  regularly  condemned. The  plaintiff",    on  the  aforefaid 

capture,  applied  to  the  refpe6live  underwriters,  and  among  them  to  the 
defendant,  requiring  fatisfatiion  for  his  lofs ;  but  they  abfolutely  refufed 
paying  any  thing,  infiflmg  that  the  fliip  had  not  failed  according  to  the  terms 
of  the  policy,  viz.  at  and  from  London  to  Gibraltar,  "  warranted  to  depart 
with  convoy ;"  but  as  flie  departed  without  convoy,  which  flie  ought  not  to 
have  done,  and  was  taken  in  confequence  thereof,  the  infurers  are  not  bound 
to  fatisfy  a  lofs,  which  they  never  obliged  themfelves  to  be  anfwerable  for ; 
that  the  fhip  ought  to  have  flaid  'till  a  convoy  offered,  and  not  gone  to  feek 
at  fuch  a  diftance,  as  evidently  expofed  her  to  be  taken  in  getting  thither : — 
on  the  contrary,  the  plaintiff  pleaded,  that  they  had  complied  with  the  tenor 
of  the  policy ;  that  the  defendant  mifconceived  the  natural  conftrutlion  of 
the  words  "  warranted  to  depart  with  convoy,"  as  they  did  not  imply  that 
the  fhip  ought  to  have  departed  with  convoy  from  the  port  of  London  ;  as 
the  rendezvous  for  fliips,  bound  to  Gibraltar  and  the  Streights,  is  generally  at 
Spithead,  where  they  join  the  convoy  :  and  although  pofhbly  there  may  be 
an  inflance  or  two  of  a  convoy  failing  from  the  Nore,  and  the  Downs,  to 
Gibraltar,  yet  this  is  an  uncommon,  accidental  thing,  and  was  not  to  be 
expefted  on  this  occafion  ;  on  the  contrary,  it  was  then  known,  that  the 
convoy  for  thofe  parts  was  to  be  at  Spithead,  and  many  fhips  went  there 
from  London  to  take  the  benefit  of  it ;  fo  that  the  warranty  could  only  be 
underflood  from  Spithead,  as  it  was  from  the  convoy  there  the  captain  was 
to  take  his  failing  orders  :  befides,  as  it  was  unfafe  to  lie  in  the  Downs 
without  a  man  of  war,  the  plaintiff  conceives  the   Ranger  would  have  run  a 

N  n  much 


142 


CONVOY. 


much  greater  rifque,  in  continuing  after  the  Otter's  departure,  than  (lie  did  in 
faihng  with  her  and  the  Dutch  fhips,  though  they  were  no  regular  convoy  ; 
and  the  plaintiff  paid  the  fame  premium  for  his  infurance  as  was  given  on 
feveral  fliips  at  the  fame  time,  with  a  warranty  to  depart  from  any  port  of 
the  channel ;  and  it  was  the  opinion  of  feveral  merchants,  that  fhips  failing 
with  convoy  are  to  make  the  beft  of  their  way  to  the  convoy,  and  not  ftay  for 
any  intermediate  one. — The  jury  found  a  verdicl  for  the  plaintiff. — Lex  Merc, 
rediv.  277. — Gordon  and  Murray  v.  Morley. — Sitt.  aft.  Mich,  at  Guildhall,  1746. 

11.  Case. — A  fliip  "warranted  to  depart  with  convoy,"  and  being  loft, 
on  an  aftion,  the  jury  found  a  fpecial  verdift,  viz.  "That  the  fhip  departed 
out  of  the  river  Thames  with  convoy ;  from  which  fhe  -wzsfeparated  about 
the  Ifle  of  Wight  by  bad  weather,  and  put  in  at  Torbay,  and  was  detained 
there  by  contrary  winds  ;  that  the  mailer  expefting  to  meet  the  convoy  failed 
out,  but  could  not  meet  with  it  for  ftrefs  of  weather ;  that  the  fhip  was  taken 
by  the  French,  and  fo  loft,  8cc.  f — the  court  declared  that  the  word,  depart 
is  only  "  terminus  a  quo  ;"  and,  if  the  fliip  had  departed  from  London,  and 
came  back  again  by  fraud,  that  had  been  no  departure  within  the  intention 
of  this  agreement ;  but,  as  'tis  found,  the  voyage  was  begun  with  convoy ; 
the  feparation  afterwards  by  ftrefs  of  weather,  both  endea\ouring  to  fave 
themfelves,  and  afterwards  to  find  each  other  ;  and  there  being  no  fraud 
found  in  the  mafter;  judgment  was  given  for  the  plaintiff". — Pojil.  Did. 
Tit.  Convoy, 

12.  Case. — On  the  queftion  whether  a  return  of  premium  agreed,  in  a 
policy,  to  be  made  "for  convoy^'  means  only  in  cafe  of  convoy  for  the  voyage; 
or  {ox  ^ny  partial  convoy  ? — Tried  before  Ld.  Mansfield,  at  Guildhall,  Mich. 
I778,  and  decided  for  the  latter;  but,  on  a  new  trial,  aft.  Trin.  1779, 
before  the  fame  judge,  determined  for  the  former. — Prelim.  Difc.  16,  84. — 
Lilly  and  Roberts  v.  Exoer. 

J3.  Remark. — The  preceding  cafe  is  one  of  the  many  inftances  of  the 
mifunderftandings  which  frequently  arife  from  an  enfnaring,  or  a  loofe  manner 
of  wording  the  written  claufes  of  policies,   and  an  inattention  thereto  on  the 

part  of  infurers. When  a  fhip  is  intended  to  be  warranted  with  convoy  for 

the  voyage,  or  Avith  any  partial  convoy,  the  words  inferted  in  the  policy 
ought  to  be,  "  warranted  to  depart  zoit/i"  fuch  or  fuch  convoy ;  and,  if  there 
be  inferted  a  return  for  convoy,   the  words  ought  to  be  "  to  return  per 

cent,  if  the  fhip  departs  with  fuch  or  fuch  convoy,  and  arrives :" — but, 
although  the  imderwriter  fuppofes  a  departure  with  convoy  and  arrival  is 
meant,  we  now  often  fee  the  claufes  expreffed  in  the  following  novel  and 
\ague  manner,  •' warranted  to  y?i?7  with," — "warranted  to  702:;?,"  convoy  ; — 
or,   "  to  return  i(  fails  with" — or  "  if  joins"  fuch  or  fuch  convoy  ;  and 

omitting  the  words  "  and  arrives." — Such  innovations  on  the  part  of  the 
affured,  contrary  to  the  ufual  terms  of  expreffion  in  written  claufes,  are 
intended  to  entrap  incautious  and  indolent  underwriters  ;  for,  certainly,  there 

may 


I 


COPENHAGEN; 


J  43 


may  be  a  great  difference  in  the  ny^Jt^  between  a  fiii'ps  departing  and  keeping 
with  a  convoy,  and  her  merely  joining  and  faihng  with  it,  in  any  part  of  the 
way,  however  fmall.  '  j  ^ifi4i 

14.     "  Warranted  to  depart  with  convoy"  has  been  refolved' to  ifhiydYt? 
by  the  ufage  of  merchants,  a  coJitinuance  \nth.thzii  convoy,  as  long  as  may  be.— - 


Lucas  287. 


•i 


15.  If  any  certain  afTurance  is  contained  in  the  poHcy,  that  the  flbip  is  to 
depart  with  convoy,  then  for  fuifilHng  of  that  condition  is  required,-^that  tha 
convoy  muft  actually  be  at  enmity  with  the  enemies  of  the  {hip  on  which  the 
affurance  is  made  : — that  the  captain,  who  will  put  himfelf  under  the  protec- 
tion, have  received  a  letter  of  inilrutlions  from  the  commander  or  captain  of 
the  convoy  : — that  he  be  ready  to  put  to  fea  along  with  the  convoy,  as  foon 
as  he  is  informed  and  knows  that  it  will  depart,  without  waiting  for  any 
further  loading,  or  fuffering  himfelf  to  be  detained  by  that,  or  any  othef 
means,  but  to  ufe  all  the  diligence  and  endeavours  in  his  power,  according 
to  the  fituation  of  the  place,  either  to  go  out  with  and  in  fight  of  the  convoy  ; 
or  if  he  lays  not  fo  near  to  the  convoy,  or  that  the  fame  cannot  come  to  him, 
he  is  immediately  to  follow,   and  endeavour  to  overtake  it  and  to  keep  con- 

ftantly   up  with  the  fame,  as  long  as  wind  and  weather  will  permit.- -If  a 

mailer  of  a  velTel,  in  the  profecution  of  his  voyage,  lofes,  or  is  feparated  from 
the  convoy  by  ftorm,  ttmpeft,  or  any  other  accident,  notwithftanding  he 
exaftly  conformed  himfelf  to  what  is  required  in  the  foregoing  article,  he  may 
under  fuch  circumftances  purfue  his  voyage,  either  to  the  place  he  is  bound  to, 
or  to  any  other  port  which  he  efteems  to  be  the  mod  fecure,  and  the  affurer 
remains  neverthelefs  anfwerable  for  all  damage  and  rifque  :  which  is  alfo  to 
be  underflood,  when  a  mafter  is  taken  by  privateers  or  enemies,  in  the 
interval  that  he  endeavours  to  overtake  the  convoy,  but  cannot  reach  it. 
— Or  din.  of  Hamb. 

16.  The  men  of  war  or  convoys  of  either  nation  meeting  or  overtaking  at 
fea  any  merchant-fhip  or  (hips  belonging  to  the  fubjefts  or  inhabitants  of  the 
other,  holding  the  fame  courfe,  or  going  the  fame  way,  fhall  be  bound  as  long 
as  they  keep  one  courfe  together,  to  proteft  and  defend  them  againfl;  all  and 
every  one,  who  would  fet  upon  them. — Treaty  with  Holt.  i66j. 

ij.     See  Prelim.  Bifc.  27,  35,  50.  Alteration,  Colony,  Contribution,  Cruifer, 
^fage.  War,  Warranty,  Written  Claufe. 


COPENHAGEN. 

1.     Policy  on  Goods,  at  Copenhagen. 

T^H  E  joint  proprietors  of  the  company  infure  to  you 

-■-     either  in  part  or  the  whole,  to  friend  or  enemy,  the  fum  of  on 

goods,  V  ares,  and  merchandifes  of  any  kind  whatever,  pcripiahk  or  not  perilhable,  without 

exception, 


144  COPENHAGEN. 

exception,  vhich  arc  already  laden,  or  fliall  be  laden  in  the   fhip,    vliich  God  prefcrve, 
called  of  which  is  captain  or  mafter,  or  whoever 

Ihall  go  as  captain  or  mafter  in  his  room ;    which  goods,  confifting  of  or 

whatever  the  nature  of  them  may  be,  are  with  our  confent  and  approbation  valued  and  fet 
down  at  the  fum  of  ,  the  infurance /rfmmw  included;    truly  and   faithfully 

confehting  and  infuring,  on  the  account  of  the  above-mentioned  infurance  company,  to  pay 
the  aforefaid  infiircd  fum  without  any  delay,   objeftion,   or  plea  of  our  privilege,  only  upon 
his  producing  this  policy  ;    and  this  within  two  months  after  due /'roo/' fliall  be  made  to  us 
upon  oath  of  the  reality  (which  God  forbid)   of  the  damage  and  lofs,  for  which  ninety-eight 
per  cent,  fhall  be  paid,  a  dcduftion  being  made  of  two  per  cent.     But  in  cafe  the  goods  be 
ftranded,  and  any  part  thereof  be  faved,  what  is  thus  faved  fhall  be  for  the  benefit  of  the 
faid  infurance  company,  and  be  deducted  from  the  fum  to  be  paid  to  the  infured.     There- 
fore we  hereby  take  upon  the  charge  and  account  of  the  company  all   dangers   and   unfor- 
tunate accidents  which  may  befall  the  faid  fhip.  and  run  all  hazards  of  it 
from  the  day  and  hour  when  the  faid  merchandife^  Aiall  be  brought  by  you  or  your  agent  to 
the  landing  place  or  fea  coaft,  to  be  put  on  board  the  fliip,  or  are  carried  from  thence  in 
boats,  wherries,  barges,  prahms,  barks,  or  liglUers,  to  the  faid  fliip,  and  put  on  board,  till  the 
fliip  arrives  at  the  above-mentioned  place,  and  the  faid  goods  and  merchandifes  are  there 
fafcly  delivered,  and  without  any  lofs  or  damages  brought  to  you  the  infured  or  your  agents : 
yet  fliall  the  rifque  laft  no  longer  than  fifteen  days  after  the  time  the  fhip  fhall   be   arrived 
at  the  appointed  place.     The  afore-mentioned  fliip  may  alfo  fail  backwards  and  forwards, 
to  the  right  and  left,  and  tack  and  turn  on  every  fide,  and  in  cafe  of  necefTity,  or  volun- 
tarilyrput  into  fuch   roads  or  harbours  as  the  captain  or  matter  fhall  find  necelfary  and 
convenient   for  profecuting  his  voyage ;    and   in  cafe  the  aforefaid  goods  be  neceflarily 
removed  from  the  fliip,  and,   inflead  of  it  reladen  on  board  another  fhip   either  fmaller  or 
larger  (which  the  infured  may  of  themfelves  do  without  our  confent  or  permiffion)   the 
company  fhall  run  the  fame  rifque  and  hazard  as  if  the  fame  goods  had  never  been  unladen: 
and  the  faid  hazard  is  to  include  all  dangers  of  the  fea,  florms,  and  bad  weather,  fire,   and 
aiTefts  by  friends  or  enemies,  detention  by  kings  and  queens,  princes,  lords,  and  republics, 
letters  of  marque  and  counter-marque,   barratry   and   negligence  of  the  matter  and  fliip's 
company,  and  all  other  perils  and  accidents,    apprehended  or  not  apprehended,  ufual  or 
unufual,  none  excepted,  which  in  any  wife  may  befal  the    faid  fliip  without  the  blame  and 
connivance  of  the  infured ;    we,   in  all  fuch  cafes,  placing  ourfelves  and  the  proprietors  in 
your  n;ead  to  infure  you  for  all  loffes  and  damages,  and  to  pay  to  you,  or  your  agents  or 
affigns,  all  damages  which  you  fhall  have  fufFered  in  the  manner  above-mentioned,  and  this 
within  t-oo  montlis  after  the  misfortune  or  damage  fliall  be  duly  proved  to  us.     "We  like\nfe 
give  you  and  all  others,  power  in  fuch  cafes  to  be  affifting  in  faving  the  afore-mentioned 
goods,  according  to  the  laws  and  ordinances  of  the  company;  in  cafe  of  neceflTity  likewife 
to  fell  them,  and,   without  waiting  for  our  previous  confent   or  permiffion,  diftribute  the 
produce  :  further,  we  will  pay  all  the  charges  incurred  thereby,  together  with  loffes  fuftained, 
ivhether  any  thing  remains  of  what  xuas  faved  or  not:  the  account  of  the  charges  to  be  allowed 
upon  the  oath  of  the  perfon  who  drew  it  up  :  all  under  ftipulation  that  for  the  faid  infii- 
rance  there  fhall  be  paid  to  the  company                                      per  cent,  free  of  average 
and  charges  arifing  from  demurrage ;    likewife  from  loflTes  and  damages  under  three  per 
cent,  and  on  wool,  hemp,  flax,  flock-fifh,  and  fugar,  under  ten  per  cent.      And  thefe 
prcmifes  the  company  and  their  proprietors  jointly  bind  themfelves  truly  and  faithfully  to 
perform  according   to  the  regulation  fct   forth   in  the  infurance  company's  ordinance ;  to 
this  end  foregoing  all   objections  and  evafions  contrary  hereto,  efpecially  all  indulgences, 
privileges,  letters  of  refpite  and  protections,  or  any  thing  elfe  whereby  fuch  payment  might 
be  retarded.         Given  at  Copenhagen  the  In  witnefs 
whereof  the  directors  have,  in  behalf  of  the  proprietors,  hereunto  fet  their  names  and  the 
company's  feal.                                                                                                 2.     Remark.. 


I 


COR        N.  145 

2.  Remark. — By  the  company's  policy,  on  JJiip,  the  rifque  commences 
"  from  the  day  and  hour  of  her  departure,  and  ends  at  her  arrival  and  clear- 
ance, at  the  place  of  difcharge  ;  yet  (hall  continue  at  longeft  onXy  fifteen  days 

after  fuch  arrival :" alfo  in  the  policy  onJJiip,  they  infert  that  "  the  mafter 

in  all  places,  where  pilotage  is  held  to  be  neceflary,  fhall  be  careful  to  provide 
himfelf  with  pilots  ;'"' — and  they  infure  againft  the  "  negligence  of  the  mafter 
and  (hip's  company ;  and  barratry  of  the  fhip's  company  only,  but  not  barra- 
try of  the  viajler :"  although  in  the  policy  on  goods  they  include  the  whole. 

3.  See  Average,  Barratry,  Chamber  of  AJJiirance,  Commencement,  Company i 
End,  Negligence,  Ordinance,  Pilot,  Policy,  Salvage. 


CORDAGE. 

1.  /CORDAGE  is  a  general  term  for  the  running  rigging  of  a  fliip,  or  all 
^-^  that  part  of  her  rigging  which  is  employed  to  extend,   contraft,   or 
traverfe  the  fails  ;    or  which  lies  in  referve  to  fupply  the  place  of  fuch  as  may 
be  rendered  unferviceable. — Falc.  Mar.  DiEl. 

2.  The  mafter  of  a  ftiip,  when  he  lets  her  out  to  freight  to  the  merchants, 
ought  to  ftiew  them  his  cordage,  ropes,  and  flings,  with  which  the  goods  are 
to  be  hoifted  aboard  or  aftiore  :  and  if  they  find  they  need  mending,  he  ought 
to  mend  them ;  for  if  a  pipe,  hogftiead,  or  other  veflel,  fliould  happen,  by 
default  of  fuch  cordage,  or  flings,  to  be  fporled  or  loft,  the  viafler  and  mariners 
ought  to  make  fatisfaftion  for  the  fame  to  the  merchants  ; — fo  alfo  if  the  ropes 
or  flings  break,  the  mafter  not  fliewing  them  before -hand  to  the  merchants, 
he  is  obliged  to  make  good  the  damage  :  but  if  the  merchants  fay  the  cordage, 
ropes,  or  flings,  are  good  and  fufficient,  and  notwithftanding  it  happens  that 
they  break,  in  that  cafe  they  ought  to  divide  the  damage  between  them  ;  that 
is  to  fay,  the  merchants  to  whom  fuch  goods  belong,  and  the  faid  mafter  with 
his  mariners. — Laws  of  Oleron,  Wifbuy,  &c. 

3.  Remark. — Through  an  ill-judged  parflmony,  in  the  fitting  out  of 
fliips,  and  the  rogueries  that  are  often  praftifed  in  the  bufinefs  of  rope-making, 
confiderable  damages  and  lofles  are  from  time  to  time  occafioned. 


■^o^ 


4.     See  Accident,  Anchor,  Average,  Cable,  Commodity,  Infufficiency,  Goods, 

Repair,   Rigging,    Wear  and   Tear. 

T.  tno'xi 

CO        R        N,       -^.'^^^ 

i.     A   S  it  Is  fometimes  made  a  queftlon,  with  regard  to  fundry  commodities 

-^^  which  feem  to  be  of  the  nature  of  corn,  or  grain,  whether  they  ought 

to  be  confidered  as  being  "  free  from  average"  according  to  the  N.  B,  at  the 

O  o  foo*- 


,46  COR        N. 

foot  of  our  prefent  policies  of  infurance  ?  it  may  be  proper  to  obferve  that 
the  following  articles  are  mentioned  in  feveral  Itatutes  relating  to  corn,  viz. 
"  wheat,  rye,  barley,  oats,  peafe,  beans,  malt,  pearl-barley,  or  other  corn 
ground  or  unground,  bread,  bifcuit,  meal,  grain." — 12  Car.  2.  c.  4. — n  and 
12  W.  3-  c.  20. — 1  Ann.  c.  -i:^. — 5  Ann.  c.  19, — 7  Ann.  c.  7. — 31  Geo.  2.  c.  29. 

2.  Case. — Upon  the  execution  of  a  writ  of  enquiry  before  the  chief  juflice, 
it  appeared  that  the  defendant  was  an  infurer  to  200I.  upon  corn,  the  xalue  of 
which  was  217I.  that  die  corn  was  fo  damaged  in  the  voyage,  that  it  fold  only 
for  67I.  and  the  freight  came  to  80I. : — and  upon  this  the  queflion  was, 
whether  as  the  freight,  which  the  plaintiff  was  obliged  to  pay,  exceeded  the 

Jalvage ;  this  was  not  to  be  confidered  as  a  total  lofs  7 — and  for  the  plaintiff  it 
was  infifted,  that  he  ought  not  to  be  in  a  worfe  condition,  than  if  his  corn 
had  gone  to  the  bottom  of  the  fea  ;  for  then  he  would  have  had  no  freight 
to  pay ;  and  now  that  the  voyage  has  been  performed,  whereby  the  freight  is 
become  due,  he  has  a  right  to  apply  the  falvage  to  difcharge  that. — It  was 
proved  to  be  the  ufagc,  where  the  falvage  exceeds  the  freight,  to  deduB,  the 

freight  out  of  the  falvage,  and  make  up  the  lofs  upon  the  difference. For 

the  defendant  it  was  infifled,  that  as  his  infurance  was  upon  the  corn,  and  the 
whole  did  not  perifh,  he  ought  in  making  up  the  lofs  to  deduft  the  falvage  : 
but  no  inflance  could  be   fliewn  on  either  fide,  of  an  adjuftment  where  the 

freight  exceeded  the  falvage  : the  chief  juflice  was  of  opinion  that  within 

the  reafon  of  dedufting  the  freight  when  the  falvage  exceeds  it,  the  plaintiff 
was  in  this  cafe  (wherein  it  fell  fhort)  entitled  to  have  it  confidered  as  a  total 
lofs :  and  the  jury  found  for  the  plaintiff  accordingly. — Stran.  1065. — 
10  Geo.  2. — Bayfield  v.  Bj-ozon, 

3.  Remark. — The  N.  B.  at  the  foot  of  our  policies,  by  which  corn  is 
'•'  free  of  average,  unlefs  general,  or  the  fhip  be  flranded,"  has  been  inferted 
fince  the  above-mentioned  time. — See  Peafe, 

4.  Case. — This  was  an  aftion  on  the  cafe  brought  upon  a  policy  of  infu- 
rance, for  the  recovery  of  56I.  19s.  8d.  per  cent,  being  the  damage  received 
by  a  cargo  of  wheat  on  board  the  Bofcawen,  infured  at  and  from  Lancafler  to 
Rotterdam ;  which  wheat  was  valued,  by  agreement,  at  30s.  per  quarter : 
the  policy  was  in  the  ordinary  form :  the  premium  was  five  guineas  per  cent. ; 
and  in  cafe  of  lofs  the  affured  to  abate  two  per  cent. :  "  N.  B.  Corn  and  fifh 
are  vj^tczxAzA free  from  average,  unlefs  general,  or  thtfhip  be  flranded  :  fugar, 
tobacco,  hemp,  flax,  hides,  and  fkins,  are  warranted  free  from  average  under 
five  pounds  per  cent,  and  all  other  goods  free  from  average  under  three  pounds 
per  cent,  unlefs  general,  or  the  fhip  be  flranded  :" — and  the  fliip  was  "  war- 
ranted Avell  in  port  the  16th  day  of  February  1760 :" — the  defendant  under- 
wrote this  policy  for  lool.  on  the  20th  of  February  1760. The  defendant 

having  pleaded;  th,e  general  iffuCj  the  caufe  came  on  to  be  tried  at  Guildhal|[, 
London,  on  thp..,;i5tb  of  February  1764,  before  Lord  Mansfield: — the  flup, 
.with  her  cargo^jb^jrig  W/^^ai  belonging  to  the  plaintiffs,  failed  from  Lanca/ler 


^ 


O        R        N. 


H7 


the  2  ift  of  February  1760:  after  her  departure  from  Lancafter,  and  before 
her  arrival  at  Rotterdam,  to  wit,  on  the  2 2d  day  of  February  1760,  failing 
and  proceeding  on  her  voyage,  (he  met  with  a  violent  ftorm,  and  was  by  and 
through  the  force  of  winds  and  ftormy  weather  obliged  to  cut  away  and 
leave  her  cable  and  anchor,  for  the  fafety  of  the  fhip  and  cargo ;  and  was 
alfo  greatly  damaged,  and  obliged  to  run  to  the  firfl  port  (being  Liverpool) 
to  refit:  the  expence  of  refitting  the  fhip  amounted  to  38I.  15s.  per  cent.: 
the  hatches  of  the  faid  fhip  were  not  opened  at  Liverpool ;  but  the  fliip, 
being  refitted,  on  the  day  of  February  1760,  failed  from  Liverpool  for 

Rotterdam  with  the  cargo  ;  and  arrived  there  on  the  day  of  February, 

and  there  landed  her  cargo  of  wheat : — upon  unloading  the  wheat,  it 
appeared  that  it  had  received  damage  by  the  faid  florm,  to  the  amount  of 

56I.  igs.  8d.  per  cent. The  fmgle  queftion  was  (upon  the  true  conflruc- 

tion  and  meaning  of  the  words  "  free  from  average,  unlefs  general,  or  the 
fhip  be  flranded-,")  whether  the  plaintiffs  can,  under  the  circumftances  of  this 
cafe,  recover  in  this  aftion,  for  the  damage  of  56I.   igs.  8d.  per  cent,  (the 

38I.   15s.  per  cent,  not  being  difputed). Mr.  Dunning   argued    for   the 

plaintiffs,  the  infured  ;  and  mentioned  a  cafe  before  Lord  Chief  Juftice  Ryder, 
in  1754,  between  Cantillon  and  The  London- AJJurance  company,  upon  an 
infurance  of  corn,  with  fuch  a  claufe  as  this  is :  and,  the  fhip  being  Jlranded, 
the  plaintiff  (the  infured)  recovered  an  average  lofs  of  about  Sol.  per  cent. — ■ 
for.  Lord  Chief  Juflice  Ryder,  and  a  fpecial  jury,  looked  upon  this  as  a  con^ 
dition  ;  and  that  by  the  fhip's  being  ftranded,  the  infurer  was  let  in  to  claim 
his  whole  partial  average  lofs : — after  which  determination,  that  company  (he 
faid)  had  altered  that  claufe  in  their  infurances,  by  omitting  the  words  "  or 
the  fliip  be  ftranded." — Where  the  fliip  is  ftranded,  the  damage  may  happen 
to  be  fuch  as  would  render  it  impoffible  to  diftinguifh  how  much  of  it  arifes 
from  the  ftranding  of  the  fhip,  and  how  much  of  it  from  the  perifhable  nature 

of  the  commodity. The  cafe  was  ordered  to  ftand  over  for  the  opinion  of 

the  court ;  and  on  the  10th  of  July  1764,— Lord  Mansfield  delivered  it  to  the 
following  effeft : — after  having  ftated  the  cafe,  he  repeated  the  obfervation 
and  argument  infifted  upon  by  the  counfel  on  the  part  of  the  plaintiffs ; — 
"  that  the  warranty  to  be  free  from  average  ought  only  to  take  place,  if 
neither  of  the  two  fpecified  events  fliould  happen ;  but  if  either  of  the  two 
fpecified  events  fhould  happen  (if  either  the  fhip  fhould  be  ftranded,  or  any 
thing  fhould  happen  which  created  a  general  average)  then  the  warranty  to 
be  free  from  average  was  difchargcd  :"  for  it  was  argued  and  infifted  upon, 
by  the  counfel,  that  the  words  were  in  the  nature  of  a  condition  ;  but  they 
are  not  to  be  conftrued  as  a  condition,  in  the  fenfe  that  the  counfel  for  the 
plaintiffs  would  have  it  underftood : — policies  of  infurance,  according  to 
their  prefent  form,  are  very  irregular  and  confufed :  an  ambiguity  arifes  in 
them  from  their  ufing  words .  in  different  fenfes,  particularly  in  the  ufe  of 
this  word  average  ;  it  is  ufed  to  fignify  contribution  to  a  general  lofs ;  and  it 
is  alfo  ufed  to  fignify  a  particular  partial  lofs  : — Sir  Henry  Spelman,  in  his 
gloffary,  ynder  the  word  avcragium,  fiys,  "  it  is  detrimentum,  quod  vehendes 
mercibus  accidit ;  ut  fluxio  vini,  frumenti  corruptio,  mercium  in  tempeftatibus 
.^^  ejeftio  : 


148  C    O    U     R    T    -    M    E    R    C    H    A    N    T. 

ejeftio :  qulbus  adduntur  veclurae  fumptus.  &  neceflariae  allae  impenfa^.  De 
averagiis  merciume  navibus  projeftarum  diftribuendis,  vetus  habetur  flatutum, 
non  imprefTum,  cujus  exemplar  apud  me  extat :" — (for  my  own  part,  I  never 
met  with  that  (latute). — Whether  it  be  confidered  in  one  or  other  of  thefe 
fenfes,  it  will  not  ferve  the  turn  of  the  plaintiffs  in  the  prefent  cafe :  for,  if 
it  here  fignifies  contribution,  the  infurer  is  to  be  free  from  contributing, 
unlefs  where  the  contribution  is  general:  if  it  fignifies  a  lofs,  then  plainly  it 
is  warranted  free  from  all  particular  loffes  : — the  infurer  is  liable  to  all  lofles 
arifing  from  the  fhip  being  ftranded,  and  in  all  cafes  where  there  is  a 
general  average  ;  but  all   other  partial   lofles    are    excluded  by  the  exprefs 

terms  of  the  policy. The   London-Aflurance    company  do,    in  all  their 

policies,  leave  out  the  claufe  about  the  (hip's  being  ftranded ;    and  only  fay, 

"  free  from  average,   unlefs  general :" the  word  unlefs  means   the  fame 

as  except ;  and  is  not  to  be  conftrued  as  a  condition,  in  the  fenfe  that  the 

counfcl  for  the  plaintiffs  would  put  upon  the  word  condition  : the  words 

"  free  from  average,  unlefs  general,"  can  never  mean  to  leave  the  infurers 

liable  to  any  particular  average. It  is  clear  that  the  plaintiffs  ought  not 

to   recover ;    and  that   the   judgment   ought   to    be    for    the    defendant. — 
Judgment  for  the  defendant.— H''^/^ra  v.  Smith. — 3  Burr.  1550.   10  July  1764. 

■     5.     See  Prelim.  Difc.  43.  Average,    Commodity,  Free  of  Average,  General 
Average,  Goods,  Grain,  Peafe,  Perifiable  Commodities,  Salt,  Salvage,  Stranding. 


COURT-     MERCHANT. 

1.  1\  yfERCHANT-COURT,  or  Court-Merchant,  is  a  kind  of  judicatory 

■^^■^  power  invefted   in  merchants,  chofen  for  that  purpofe  in  feveral 

parts  of  Europe,  in  order  to  decide    and  determine,  in  a  fummary  w'ay,  all 

differences  and    litigations    among    themfelves    and   their  dependents. 

Courts  of  merchants  fliould  be  erefted  for  the  fpeedy  deciding  all  differences 
relating  to  fea  affairs :  which  are  better  ended  by  thofe  who  underftand  them, 
than  they  are  in  Weftminfter-Hall,  w'here  all  things  are  tried  by  the  nice  rules  of 
law  :  and,  therefore,  after  much  attendance  and  expences  are  often  referred 
by  the  judges  tofuch  as  are  converfant  in  trade ; — ^by  this  means  the  merchants 
would  foon  fee  fhort  ends  to  their  differences ;  but  no  general  rules  can  be 
given' for  thefe  courts,  which  mud  be  fettled  as  they  fuit  the  conveniences  of 
trading  cities. — Carey  on  Trade. 

>  .2.  1  ASK  pardon  of  the  learned  gentlemen  of  the  long  robe  (fays  the 
remarkable  De  foe  J  if  I  (k>  them  any  wrong,  having  no  defign  to  affront  them, 
when  J  fav,  that,  in  matters  of  debate  among  merchants,  when  they  come  to 
be  argued  by  lazvyers  at  the  bar,  they  are  ftrangely  handled.  I  rriyfelf  have 
heard  very  famous  lawyers  make  forr)''  work  of  a  caufe  between  the  merchant 
and  his  iaMor ;  and,  when  they  come  to  argue  about  exchanges,  difcounts, 
protefls,  demurrages,  charter-parties',  freights,  port-charges,  affurances,  bar- 
ratries. 


C    O    U    R    T    -    M    E    R    C    H    A    N    T. 


149 


ratries,  bottomries,  accounts  current,  accounts  in  commifTion,  and  accounts 
in  company,  and  the  like,  the  folicitor  has  not  been  able  to  draw  a  brief,  nor 
the  counfel  to  underftand  it :  never  was  young  parfon  more  put  to  it  to  make 
out  his  text,  when  he's  got  into  the  pulpit  without  his  lioteSj  than  I  have  ken 
a  counfel  at  the  bar,  when  he  would  make  out  a  caufe  between  merchants  : — 
and  I  remember  a  pretty  hiflory  of  a  particular  cafe,  by  way  of  inftance, 
when  two  merchants  contending  about  a  long  faftorage-account,  and  had  all 
the  niceties  of  mcrchandifmg  in  it,  and  labouring  on  both  fides  to  inftruft 
their  counfel,  and  to  put  them  in  when  they  were  out ;  at  laflthey  found  them 
make  fuch  ridiculous  Huff  of  it,  that  they  both  threw  up  the  caufe,  and  agreed 
to  di  reference ;  which  reference,  in  one  week,  without  any  charge,  ended  all 
the  difpute,  which  they  had  fpent  a  great  deal  of  money  in  before  to  no 
purpofe. — Nay  the  \ cry  judges  themfelves  (no  refleftion  upon  their  learning) 
have  been  very  much  at  a  lofs  in  giving  inflruftions  to  3.  jury,  and  juries  much 
more  to  underftand  them  ;  for,  when  all  is  done,  juries,  which  are  not  always, 
nor  often  indeed,   of  the  wifefl  men,  are,  to  be  fure,  ill  umpires  in  caufes  fo 

nice,   that   the    very    lawyer   and  judge  can   hardly   underftand  them. 

Wherefore  it  feems  to  me  a  raofl  natural  proceeding,  that  fuch  affairs  ffiould 
be  heard  before  and  judged  by  fuch  as,  by  known  experience  and  longpraftice 
in  the  cuftoms  and  ufagcs  of  foreign  negoce,  areofcourfe  the  moft  capable  to 
determine  the  fame  :  befides  the  reafonablencfs  of  the  argument,  there  are  fome 
cafes  in  our  laws  in  which  it  is  impoffible  for  a  plaintiff  to  make  out  his  cafe,  or 
a  defendant  his  plea  ;  as,  in  particular,  when  his  proofs  are  beyond  feas,  for  no 
protefts,  certificates,  or  procurations,  are  allowed  in  our  courts  as  evidences  ; 
and  the  damages  are  infinite  and  irretrievable  by  any  of  the  proceedings  of  our 
laws. — By  this  method,  infinite  controverfies  would  be  avoided,  and  dif- 
putes  amicably  ended,  a  multitude  of  prefent  inconveniences  prevented,  and 
merchandifing  matters  would  in  a  merchant-like  manner  be  decided,  by  the 
known  cuftoms  and  methods  of  trade. 

3.  Rem  A  RK.-7-The  great  o'^je61ion  that  hath  been  made  againft  aneftablifli- 
ment  of  this  nature,  is,  that  not  many  merchants  are  fufficiently  fls.illed  in 
the  laws,  cujloms  and  ufagcs,  which  have  relation  to  their  own  profeffion ; 
and,  therefore,  they  can  never  be  competent  judges  in  regard  to  every  kind 
of  litigation  which  may  come  before  them  : — the  experience,  however,  of  other 
nations  has  fliewn,  that  the  mercantile  world  is  contented  at  prefent,  in  the 
general,  rather  with  the  determinations  of  a  judicatory  of  their  own  fraternity, 
than  thofe  of  lawyers : — and  a  court  of  fele6l  merchants  (eftabliflied  by  autho- 
rity) from  a  long  and  fuitable  attention  to  concerns  of  this  nature,  and  the  regif- 
tering  the  reports  of  their  predeceiTors,  may,  in  time,  become  very  knowing 
and  judicious  in  determining  almoft  all  kinds  of  differences  between  their 
brethren  and  their  dependents. 

4.  See  Prelim.  Difc.  15,  20.  Amicable  Judicatory,  Arbitration,  Chamber 
of  AJfitrance,  Confiil,  Court  of  Policies  of  AJfurance,  Difpute,  Jury,  Law. 

P  p  COURT 


C   150  ] 

COURT    OF    POLICIES     OF    ASSURANCE. 

1.  'T^HE  court  of  policies  of  alTurance,  when  fubfifling,  is  erefted  in 
-^  purfuance  of  ftatute  43  Eliz.  c.  12.  which  recites  the  immemorial 
ufage  of  policies  of  aflurance,  "  bv  means  whereof  it  cometh  to  pafs,  upon 
"  the  lofs  or  perilhing  of  any  fliip,  there  followeth  not  the  undoing  of  any 
"  man,  but  the  lofs  lighteth  rather  eafily  upon  many  than  heavily  upon  few, 
"  and  rather  upon  them  that  adventure  not,  than  upon  thofe  that  do  adven- 
"  ture ;  whereby  all  merchants,  efpecially  thofe  of  the  younger  fort,  are 
"  allured  to  venture  more  willingly  and  more  freely :  and  that  heretofore  fuch 
"  aflurers  had  ufed  to  Hand  fo  juflly  and  precifely  upon  their  credits,  as  few 
"  or  no  controverfies  had  arifen  thereupon  ;  and  if  any  had  grown,  the  fame 
"  had  from  time  to  time  been  ended  and  ordered  by  certain  grave  and  difcreet 
"  merchants  appointed  by  the  lord-mayor  of  the  city  of  London  ;  as  men  by 
"  reafon  of  their  experience  fittefl  to  underfland  and  fpeedily  to  decide  thofe 
*'  caufes:" — but  that  of  late  years  divers  perfons  had  withdrawn  themfelves  from 
thatcourfe  of  arbitration,  and  had  driven  the  afiured  to  bring  feparate  aftions 
at  law  againft;  each  affurer :  it  therefore  enables  the  lord  chancellor  yearly  to 
grant  a  Jlanding  commijjion  to  the  judge  of  the  admiralty,  the  recorder  of 
London,  two  doctors  of  the  civil  law,  two  common  lawyers,  and  eight 
merchants  ;  any  three  of  which,  one  being  a  civilian  or  a  barriller,  are  thereby 
and  by  the  ftatute  33  and  14  Car.  2.  c.  23.  empowered  to  determine  in  a 
fummary  way  all  caufes  concerning  policies  of  aflurance  in  London,  with  an 
appeal  (by  way  of  a  bill}  to  the  court  of  chancery. — But  the  jurifdiftion  being 
fomewhat  defetlive,  as  extending  only  to  London,  and  to  no  other  aflurances 
but  thofe  on  merchandife,  and  to  fuits  brouglit  by  the  aflured  only  and  not  by 
the  infurers,  no  fuch  commiflion  has  of  late  years  iffued :  but  infurance 
caufes  are  now  ufually  determined  by  the  verdift  of  a  jur)^  of  merchants,  and 
the  opinion  of  the  judges  in  cafe  of  any  legal  doubts ;  whereby  the  decifion 
is  more  fpeedy,  fatisfaftory,  and  final :  though  it  is  to  be  wifhed,  that  fome  of 
the  parliamentary  powers  invefted  in  thefe  commijjioners,  efpecially  for  the 
examination  of  witneflcs,  either  beyond  the  feas  or  fpeedily  going  out  of  the 
kingdom,  could  at  prefent  be  adopted  by  the  courts  of  Weftminlter-hall, 
without  requiring  the  confcnt  of  parties. — 3  Black.  Covi.  74. 

2.  Rv  Stat.  43  Eliz.  c.  12.  f.  1. — It  Ihall  be  lawful  for  the  lord  chancellor 
to  award  under  the  great  feal  one  ftanding  commiflion,  to  be  renewed  yearly 
at  leafl,  for  the  hearing  and  determining  of  caufes  arifing,  and  policies  of  aflu- 
rance entered  within  the  office  of  aflurances  in  London  ;  which  commiflion 
fliall  be  direfted  unto  the  judge  of  the  admiralty,  the  recorder  of  London, 
two  doftors  of  the  civil  law,  two  common  lawyers,  and  to  eight  difcreet 
merchants,  or  to  any  five  of  them  ;  which  commiflioners,  or  the  greater  part 
of  them  which  fliall  fit,  fliall  have  power  to  hear,  examine,  and  decree,  all 
fuch  caufes'    concerning    policies  of  aflurance  in  a  fummary  courfe,  without 

formalities  of  proceedings. S.  2.  It  fliall  be  lawful  for  the  commiflioners  as 

well 


! 


COURT     OF     POLICIES     OF     ASSURANCE.  131 

well  to  warn  the  parties,  as  to  examine  upon  oath  any  witnefTes,  and  to 
commit  any  perfon  that  (hall  contemn  their  decrees  :  and  they  fhall,  once 
every  week  at  leafl,  fit  upon  the  execution  of  the  commiffion  in  the  office  of 
aflurances,  or  fome  other  place  ;  and  no  perfon  by  this  acl  may  claim  any  fee. 

S.  3.  Any  perfon  grieved  by  fentence  of  the  commilhoners,  may  within 

two  months  of  the  decree  made,  exhibit  his  bill  in  chancery  for  the  re- 
examination of  fuch  decree,  fo  as  every  complainant,  before  he  exhibit  fuch 
bill,  do  either  execute  the  fentence,  or  lay  down  in  depofite  with  the  com- 
miffioners  fuch  money  as  he  (hall  be  awarded  to  pay  ;  arid  the  lord  chancellor, 
in  every  fuch  fuit  brought  by  fuch  affurers,  and  decreed  againft  the  affurers, 

fhall  award  double  cofts. S.  4.  No  commiUioner  fliall  intermeddle   in  the 

execution  of  fuch  commilfion  in  any  caufe  where  himfelf  fliall  be  a  party  ;  nor 
any  commiffioner  (other  than  the  judge  of  the  admiralty,  and  the  recorder  of 
London)  fhall  proceed  in  the  execution  of  any  fuch  commiflion,  before  he 
have  taken  his  oath  before  the  lord-mayor  and  court  of  aldermen,  to  proceed 
uprightly  and  indifferently  between  party  and  party. 

3.  Case. — A.  and  B.  were  bail  for  C.  in  a  fuit  againflhim  in  the  admiralty 
brought  by  I.  S.  for  lool.  due  to  him  by  I.  S.  for  freight ;  and  C.  going 
to  Barbadoes,  where  he  had  a  fhare  in  a  plantation,  and  likewife  a  quarter 
part  of  the  fliip  he  was  to  go  in,  his  life  wa.s  infured  by  A.  and  B.  his  bail  :— 
a  prohibition  was  prayed  to  the  court  of  policies,  furmifmg  that  they  proceeded 
there  in  the  trial  of  the  uffurance  of  C.'s  life,  which  w^as  infilled  to  be  triable 
at  common  law. — Roll.  C.  J.  thought  the  affurance  of  a  man's  life  not  within 
the  ftatute,  as  upon  the  buying  of  an  office  ;  but  where  he  is  going  to  fea  upon 
merchants'  affairs,  his  life  may  be  affured,  as  well  as  the  fafe  return  of  the  fliip 
he  goes  in. — But  afterwards,  upon  hearing  counfel,  it  was  objefted,  that  the 
party  might  have  remedy  in  B.  R.  as  well  as  in  the  court  of  policies,  and 
therefore  B.  R.  ought  to  be  preferred,  and  the  contraft  has  no  relation  to 
merchandife,  and  fo  belongs  not  to  that  court. — It  was  replied  that  the  words 
of  the  policy  ffiewed  that  the  contraft  concerned  merchandife  ;  but  Roll  faid, 
the  words  are  not  material ;  for  they  may  be  falfe,  and  the  contraft  may  be  for 
things  not  touching  merchandife  notwithftanding,  and  the  intent  of  the  ftatute 
is  for  things  merchantable  ;  and  if  they  appear  not  fo,  a  prohibition  ought  to 
be  granted,  and  faid  they  could  not  avoid  granting  a  prohibition. — Sty.  166. 
Mich.  1649. — Bendir  v.  Oyle. 

4.  Case. — If  the  court  of  policies  have  jurifdiftion  of  the  principal  matter, 
they  have  alfo  jurifdiftion  of  all  matters  incident  thereunto  ;  and  they  may 
try  them  according  to  the  courfe  of  their  law,  fo  that  it  may  not  be  contrary  to 
the  common  law. — Per  Roll.  C.J.  Sty.  418.     Trin.  1654. — Oyles  v.  MarJIialL 

5.  Case. — An  aftion  on  the  cafe  was  brought  for  a  thing  pending  in  the 
court  of  policies  of  affurance  :  the  fuit  there  was  difmiffed  : — the  queflion  was, 
if  the  party  might  have  an  aftion  at  common  law  for  the  fame  thing  which  he 
fued  for  in  that  court : — but  the  whole  court   held  that   the  adion  lies :    for 

this 


152  COURT    OF     POLICIES    OF    ASSURANCE. 

tills  court,  being  erefted  by  the  ftatute,  has,  Hke  other  courts  of  equity, 
]mM\cX\on  in perfonam  only,  and  not  in  rem;  for  it  is  a  certain  rule,,  that 
a  decree  in  a  court  of  equity  fliall  not  be  a  bar  in  an  aftion  brought  at 
common  law ;  and  adjudged  that  the  plaintiff"  may  have  his  aftion  at  common 
la^^^ — 2  Sid.  121.     Mich.  1658.     B.  R. — Came  v.  Moye. 

6.  By  Stat.  13  and  14  Car.  2.  c.  23.  f-  2. — It  is  enafted  that  the  com- 
mifTioners  for  determining  caufes  upon  policies  of  infurance  entered  within  the 
office  of  affurance  of  London,  or  three  of  them,  whereof  a  doclor  of  the 
civil  law,  or  a  barrifter  of  five  years  Handing  to  be  one,  may  proceed  as 
five  might  have  done  ;  and  in  cafe  of  wilful  delay  of  witnelfes  upon  the  firit 
fummons  and  tender  of  charges,  and  of  parties  upon  the  fecond  fummons,  may 
punifli  the  offenders  by  imprifonment  or  colls.  Every  fuch  commiffioner  may 
proceed,  having  taken  an  oath  before  the  lord-mayor  of  London  to  proceed 

uprightly. S.  3.  Commillions  fhall  iffue  out  of  the  admiralty    returnable 

before  the  faid  commifhoners  to  examine  witneflcs  beyond  fea,  or  in  any 
remote  parts  of  the  king's  dominions  ;  the  commifhoners,  or  three  of  them, 
may  pafs  fentence  and  execution  againft  the  body  and  goods,    and  againft  the 

executors,  &c.  of  the  party  evifted,  and  affefs  cofls  offuit. S.  4.  Anyone 

commilTioner  may  adminifter  an  oath  to  a  witnefs,  notice  being  given  to  the 
adverfe  party,  and  fet  up  in  the  office,  that  fuch  witnefs  may  be  crofs  examined. 

S.  5.  The  commifhoners  fliall  not  proceed  againfl  body  and  goods  for 

the  fame  debt. 

7.  Case. — The  plaintiff's  bill  was  an  appeal  from  a  decree  of  the  court  of 
policies  and  aflurances  in  London  ;  whereby  the  defendant  below  not  appear- 
ing upon  the  firfl  fummons,  the  bill  was  ordered  to  be  taken  pro  confejfo 
againft  him :  and  for  the  plaintiff  it  was  infifted,  that  though  by  the  ftatute 
43  Eliz.  c.  12.  and  the  ftatute  14  Car.  2.  c.  23.  the  commiftioners  may  pro- 
ceed in  a  fummary  courfe,  without  formalities  of  pleadings,  yet  it  was  very 
extraordinary  to  take  a  bill  pro  cotiJcJJo  upon  the  firft  fummons ;  and  they 
ought  at  leafl  to  have  the  allegations  in  the  bill  proved,  before  they  proceeded 
to  make  fuch  order  :  and  it  was  faid,  though  the  courfe  in  this  court  now  is, 
not  to  take  a  bill  pro  confejfo  after  the  party  has  once  appeared,  and  ftands 
out  in  contempt  'till  the  plaintiff  has  got  to  the  end  of  the  line,  and  has  run 
through  all  the  procefs  of  the  court  againft  him;  yet  formerly  this  court  did 
not  do  it  even  in  that  cafe  without  putting  the  plaintiff  to  prove  the  fubftance 
of  his  bill ;  whereupon  the  lord  keeper  reverfed  the  decree. — And  though  in 
this  cafe  the  appeal  was  not  brought  within  two  months  after  the  decree, 
according  to  the  faid  aft  of  43  Eliz.  yet  in  regard  the  defendant  could  not 
make  out  that  the  now  plaintiff  had  been  fairly  fummoned,  the  lord  keeper 
admitted  the  appeal ;  and  thereupon  the  parties  agreed  to  try  the  matter  in 
an  aftion  on  the  cafe,  the  plaintiff  by  order  being  not  to  infift  upon  the 
ftatute  of  limitations. — Vern.  223,  224.  Hill.  1683.  in  Chan.— 5iV  James 
John/on  v.  Defmineere. 

■    '  8.    Case, 


COURT     OF     POLICIES     OF     ASSURANCE.  153 

8-  Case. — Prohibition  :  the  defendants  had  fubfcribed  a  policy  of  infu* 
ranee  to  the  plaintiff,  and  a  lofs  happening,  the  defendants  were  fued  at  law, 
and  a  declaration  delivered  :  thereupon  the  defendants  fummon  the  plaintiff 
before  the  commilfioners  for  determining  of  policies,  the  fame  being  made  in 
the  office,  pretending  that  the  faid  policy  w^as  had  and  procured  by  fraud, 
and  endeavoured  to  have  the  policy  delivered  up  by  order  of  the  com- 
miffioncrs  there,  according  to  43  Eliz.  c.  12.  and  14  Car.  2.  c.  23. — Shower 
moved  for  a  prohibition  on  a  fuggeflion  of  this  matter,  for  thcfe  rea- 
fons,  viz.  that  they  have  no  jurifdiftion  in  this  cafe  ;  that  fraud  and  vo 
interejl  annuls  the  policy  at  common  law ;  that  it  is  good  evidence  upon  the 
general  iifue  ;  that  we  had  our  aftion  on  the  policy  here,  and  fo  a  jurifdiftion 
was  attached  ;  that  this  method  would  deprive  us  of  our  evidence  at  law,  viz. 
the  written  policy ;  that  this  would  ereft  another  court  of  equity,  in  confe- 
quence,  to  control  fuits  at  law  ;  befides,  that  they  had  no  authority  in  this 
matter  by  the  afts  of  parliament ;  that  the  fummary  method  therein  pre- 
fcribed  without  trial  by  jury  was  never  intended  further  than  the  relief  of  the 
infured  againft  the  infurers,  and  being  fuch  a  law,  was  not  to  be  extended 
further  than  the  words ;  that  the  mifchief  recited  was  trouble  for  the  infured 
to  fue  every  feveral  infurer  diftinftly ;  that  though  the  purview  be  generaJ, 
viz.  to  hear  and  determine  caufes  arifmg  upon  policies  of  infurance,  yet 
feveral  other  claufes  fhew  the  intent ;  as  that  "  upon  appeals  the  party 
grieved  fhall  firil  fatisfy  the  decree,  or  at  lead  depofite  the  monies  decreed  in 
the  commiifioners"  hands  ;"  which  plainly  means  the  affurers  to  be  appellants, 
and  upon  fuit  fo  brought  before  them  by  the  affurers  upon  appeal,  the 
chancellor  is  to  award  double  cofts  :  that  any  other  conftruftion  Avould  make 
a  claPning  of  jurifdiftions. — And  a  rule  was  obtained  for  a  prohibition  unlefs 
caufe,  and  to  flay  proceedings  in  the  mean  time. — ■S/ioru.  396.  Pafch.  4. 
W.  and  M. — Dclbie  v.  Proudjoot  &  al. 

9.  Case. — These  ftatutes  did  not  take  away  that  cognizance  which  the 
courts  of  Weflminfter  claimed  on  fuch  contrafts  by  the  common  law  ;  but  only 
gave  this  new  erefted  court  a  concurrent  jurifdiftion  with  thofe  of  the  common 
law;  for  though  the  lofs  happened  out  of  the  realm,  they  had  jurifdiftion  of 
the  caufe  ;  and  therefore  if  an  aftion  be  brought  upon  a  policy  of  affurance, 
though  the  lofs  happened  at  fea,  yet  the  jury  fhall  enquire  ;  for  the  lofs  is  not 
the  direft  ground  of  the  aftion,  but  the  affumpfit. — Molloy,  b.  2.  c.  7.  f.  8. 
cites  Styl.  Rep.  418.  6  Co.  47. — Dowdales  Cafe. 

10.  By  making  an  office  policy,  according  to  the  ftatutes,  thefe  advantages 
followed  : — \ .  if  die  policy  was  loft,  the  entry  thereof  with  the  regijler  of  the 
office  was  fufficient  evidence,  both  at  common  law  and  in  the  fame  court ; 
but  a  private  policy  loft  is  like  a  deed  burnt,  unlefs  there  be  a  copy  thereof, 
or  fome  other  very  ftrong  evidence ;  fo  that  then  there  will  remain  nothing 
but  an  equitable  relief  in  chancery  for  the  fatisfaftion  of  the  party : — 2.  the 
commiffioners  may,  in  cafe  of  any  difpute  between  the  affurers  and  affured, 
examine  them  upon  oath,  and  determine  the  matter  according  to  law  and  the 

Q  q  ,  cuftom 


154 


CRUISE      AND      CRUISING. 


Guftom  of  merchants ;  but  this  cannot  be  done  at  common  law,  andreUefcan 
be  had  only  in  a  court  of  equity,  where  the  party  has  not  fufficient  evidence 
at  law  : — 3.  it  was  a  court  of  equity  as  well  as  a  court  of  law  ;  and  they  could 
decree  againfl  tAventy  affurers  at  the  fame  time  ;  but  at  law  they  mud  be  fued 
feverally  : — 4.  they  could  proceed  out  of  term  as  well  as  in  term  ;  and  they 
might  finifh  a  caufe  in  a  fortnight's  time  or  lefs  : — 5.  the  judgments  there  given 
were  generally  upon  mature  deliberation,  and  by  peribns  well  fl-iilled  in  marine 
affairs  ;  and  if  their  fentencewas  thought  unrealbiiable,  the  lord  chancellor,  or 
lord  keeper,  might  on  appeal  examine  and  determine  the  fame  : — 6.  the  legilla- 
ture  had  fuch  refpeft  for  the  judgments  given  in  this  court,  that  no  appeal  lay 
from  thence,  until  the  whole  money  decreed  was  depofited,  and  full  cofls  paid 
to  the  appellee  ;  and  though  this  court  could  not  compel  the  defendant  to 
put  in  bail,  yet  the  fentence  there  being  fo  expeditious  was  efleemed  very 
convenient  to  the  aflurers  as  well  as  theafl'ured. — Molloy,h.  2.  c.  7,  f.  19. 

11.  But,  as  private  perfons  were  not  excluded  by  thefe  afts  from  car- 
rying on  this  bufmefs  as  before,  and  the  commiffioners  taking  no  cognizance 
of  any  policies  not  made  in  their  office,  and  recovery  of  loflcs  thereon  being 
made  eafy  at  common  law ;  befides,  there  having  been  fome  partiality 
praclifed  by  the  coTnmijJioners,  and  an  appeal  being  allowed  from  their  deter- 
minations to  the  court  oS.  chancery,  the  bufmefs  of  this  court  foon  diminiflied, 

and  the  granting  commiffions  was  difcontinued. After  this  no  public  law 

was  made  in  England  concerning  infurances,  except  9  Ann  c.  6.  f.  57.  to 
prohibit  infuring  on  marriages,  births,  chriflenings,  and  fervice ;  but  all 
was  tranfacted  by  private  office  keepers  ;  'till  one  was  pafTed  in  the  year  1720, 
by  which  his  majelly  was  enabled  to  grant  two  charters,  for  erefting  two 
corporations  for  infuring  Ihips  and  merchandife,  and  lending  money  on  bot- 
tomry, wliich  are  now  called  the  Royal-Exchange-AJfurancc,  and  the  London- 
AJfurance ;  which  corporations  are  to  have  perpetual  fucceffion,  fubjeft  to 
redemption,  or  power  of  revocation, — 'Lex  Merc,  rediv.  263. 

12.  See  Prelim.  Difc.  15  to  20,  Amicable  Judicatory,  Arbitration, 
Chamber  of  AJJurance,  Chancery,  Company,  Conful,  Court-Merchant,  Dif- 
piite.   Law,  Statute. 


CRUISE      AND      CRUISING. 

1.  /BRUISE  is  a  voyage  or  expedition  in  queft  of  veffels  or  fleets  of  the 
V-^  enemy,  which  may  be  expefted  to  fail  through  any  particular  tra6l 
of  the  fea,  at  a  certain  feafon  of  the  year: — the  region  in  which  thefe  cruifes 
are  performed  is  ufually  termed  the  rendezvous,  or  cruifing  latitude. — When 
the  fhips  employed  for  this  purpofe,  which  are  accordingly  called  cruifers, 
have  arrived  at  their  deftined  llalion,  they  traverfe  the  fea  backward  and 
forward,  under  an  eafy  fail,  and  within  a  limited  fpace,  conjeftured  to  be 
nearly  in  the  track  of  their  expe6led  adverfaries. — Falc.  Mar.  Did. 

2.    Case, 


CRUISE    AND    CRUISING.  yrr, 

2.  Case. — ^The  Dartmouth  galley,  being  fitted  out  as  a  privateer,  failed  in 
company  with  the  Fortune,  in  Oftober  1744,  on  a  cruife  ;  and  the  plaintiffs 
being  concerned  therein,  got  infurance  made  on  their  part  for  one  calendar 
month,  of  which  the  defendant  wrote  200I.  and  the  faid  fliips,  after  being  out 
two  days,  fell  in  with  two  French  men  of  war,  with  whom  the  Dartmouth  enga- 
ged ;  and  after  a  gallant  defence,  was  taken  by  them,  though  not  'till  the  captain 
and  tw'o  more  were  killed,  and  feveral  wounded ;  when  the"  lieutenant,  feeing 
the  inequality  of  the  combat,  ordered  the  colours  to  be  ftruck,  and  furren- 
dered  ;  on  which  the  conquerors  ordered  the  Dartmouth's  people  to  hoift  out 
their  barge,  and  go,  as  many  as  could,  on  board  the  men  of  war :  but  the 
Dartmouth's  men,  finding  an  opportunity,  failed  away  and  got  off. — Their 
enemies  purfuing  and  overtaking  them^  they  were  obliged  finally  to  fubmit ; 
and  the  men  of  war  fent  a  lieutenant,  with  a  fufBcient  power,  to  take  poffef- 
fion  of  the  Dartmouth,  in  whofe  cullody  fhe  continued  only  about  an  hour 
and  a  half,  or  two  hours  ;  for  the  lieutenarit  and  his  company,  perceiving  fhe 
was  leaky  by  one  of  the  men  of  war  running  foul  of  her,  and  ftarting  a  plank 
during  the  engagement,  called  his  commanders  to  fend  a  boat  for  them,  as 
they  feared  finking ;  which  they  immediately  complied  with,  and  the  lieute- 
nant of  the  Dartmouth,  and  about  ninety  of  her  men  were  carried  into  France ; 
and  the  boatfwain  being  left  on  board  with  about  twenty  more  (including  the 
nine  wounded)  fearched  for,  and  in  a  great  meafure  flopped  her  leaks ;  and 
taking  advantage  of  the  Frenchmen's  fears  and  the  night,  in  two  days  after 
got  fafe  into  Dartmouth,  and,  foon  after  her  arrival  there,  was  refitted  by  the 

owners,  and  failed  on  another  cruife. After  this   the  faid  fliip  was   kept 

infured  from  month  to  month,  and  the  defendant  underwrote  feveral  fubfe- 
quent  policies  on  her,  being  always  told  by  the  of?ice-keeper  that  "  he  was 
off  the  firfl  policy  ;"  and  neither  he  nor  the  plaintiffs  ever  pretended  to  demand 
any  thing  of  him  on  account  thereof. — In  about  fix  months  after  the  expi- 
ration of  the  aforefaid  policy,  the  defendant  paid  the  plaintiffs  a  lofs  on 
her,  having  continued  to  infure  her  monthly  from  the  policy  in  queflion ; 
and  the  plaintiffs  when  they  received  it,  never  fo  much  as  infinuated  or 
pretended,  that  they  had  any  right  to  the  firji  infurance:  however,  the 
plaintiffs  have  now  claimed  it,  as  the  taking  of  the  fliip,  and  carrying  her 
men  away,  entirely  overfet  the  cruife,  and  flie  could  not  be  refitted  and  fail  on 
another  before  the  expiration  of  the  month  for  which  fhe  was  infured  ;  and 

confequently  this  proved  an  entire  lofs  to  the  affured. But  in  fupport  of 

the  contrary,  it  is  alleged  by  the  defendant,  and  confirmed  by  the  opinion  of 
feveral  very  confiderable  merchants,  that  this  could  not  be  counted  a  total 
lofs,  more  efpecially  as  it  is  not  on  a  cruife,  the  words  of  the  policy  being 
*'  to  be  infured  loff  or  not  loft,  to  any  ports  or  places /or  one  calendar  month;" 
but  no  mention  at  all  made  of  any  cruife ;  on  which  account  the  defendant 
fuppofes  there  could  be  no  interruption  to  a  thing  never  guarded  againft  ;  and 
befides,  the  fhip  was  fo  far  from  being  a  total  lofs  to  the  owners  on  the  firft 
rifque,  that  flie  afterwards  met  with  very  great  fuccefs  by  taking  a  very  rich 
prize  : — and  if  this  doftrine  offered  by  the  plaintiffs  had  taken  place  with 
refpett  to  infurances  made  for  a  time,  every  collier  might  bring  this  as  a  plea, 

as 


i^S  .  CRUISE    R. 

as  they  are  always  infured  on  tliefe  terms :  though  it  was  never  appreliended 
that  every  Httle  accident  which  happened  within  tlie  time,  and  obhged  them 

to  refit,  v*-as  deemed  a  lotal  lofs. -The  plaintiff's  were   nonfuited,   becaufe. 

unprepared  to  fliew  the  impbflibility  of  her  being  fitted  out  again  before  the 
expiration  of  the  infurance. — Lex  Merc,  rcdro.  271.  Trin..  1749.  at  Guildhall. 
— Jalabert  a?id  Ncvil  v.  Collier. 

3.  Case. — The  plaintiff  made  an  infurance  in  London  on  the  Tryal  priva- 
teer, fitted  out  at  Briflol,  for  two  calendar  inonlks,  wherever  the  {hip  might 
then  be,  on  a  cruife,  or  in  any  port  or  place  ^wh,atfoever  or  wherefoever,  the  faid 
Ihip  to  be  valued  at  interejl.  or  na  interefli  free  of  average,  and  without 

benefit  offalvage. The  faid  privateer  being  fitted  for  her  cruife,  failed  from 

Briflol  on  the  29th  of  May  1746",  and  fome  days  after  fhe  was  met  by  a  French 
privateer  of  a  fuperior  force,  who  attacked,  and,  after  a  brave  defence,  took 
her. — 'She  had  been  in  the  enemy's  hands  about  eight  hours,  without  their 
removing  any  of  her  men  or  ftores,  when  Admiral  Martin  wath  his  whole  fleet 
appearing,  retook  the  Tryal;  and  hearing  of  the  gallant  bahaviour  both  of 
the  captain  and  his  crew,  they  unanimoufly  agreed  to  give  up  their  falvage  to 
them,  and  accordingly  drew  up  and  figned  an  infhument  to  that  purpofe ; 
and  the  admiral  ordered  her  to  be  furnifhed  with  all  neceffaries,  and  fent  a 
man  of  war  floop  to  fee  her  fafe  into  Briflol;  where  flie  arrived  the  latter 
end  of  June,  being  between  three  and  four  Aveeks  before  the  infurance 
expired. — Thefe  circumflances  the  plaintiff"  thinks  entitle  him  to  a  total  lofs, 
as  the  voyage  was  overfet,  and  the  policy  being  on  interefl  or  not,  will  admit 

of  no  average. The  defendant  agrees  to  the  laft  affertion,    but  for  that 

verv  reafon  infifls  he  has  no  lofs  to  pay,  as  he  is  free  from  a  partial  one,  and 
there  can  be  no  total  one,  where  the  fhip  is  arrived ;  and,  as  he  infifls, 
might  have  been  fitted  out  again,  before  the  limited  term  of  two  months  expi- 
red, had. the  owners  not  determined  the  contrary  ;  and  befides,  though  the 
fhip  was  taken,  yet  as  fhe  was  never  carried  infra prczfidia  of  the  enemy,  or 
was  taken  fo  as  to  be  beyond  a  pofiibility  of  a  recapture  ;  and  hath  returned 
to  Briftol,  fo  long  time  bcfqje  the  two  months  expired,  as  was  fufificient  to 
refit  her  in ;  the  defendant  fuppofes  that  the  neglcd  of  the  owner  ought  not 
to  be  imputed  to  the  underwriters ;  more  efpecially  as  feveral  fliip-builders 
attended  to  prove  there  was  time  enough,'  as  feveral  merchants  did  to  give 
their  opinion  in  regard  to  the  lofs. — Verdi6l  for  the  plaintiff. — Lex  Merc.  red. 
iS^J.  at  Guildhall,  Mich.   1749. — Jenkins  \.  Mackenzie. 

Vf^.     Sf.K  Prelim.  Difc.  45.  Capture,  Cc^nmiffion  of  Marque,  Cruifer,  Interefl 
or  m.0  Intereft,  Letter  of  Marque,  Privateer,  Time. 

CRUISER. 

1.   /BRUISERS  are  commonly  the  befl  failing  fhips,  appointed  by  the 

^-^  admiralty  to  cruife  in  fome  certain  latitudes,  in  order  to  meet  with, 

and  apprehend  or  deflroy  the  enemy ;  they  are  generally  of  the  fraalleft  rates, 

and 


9 


CUTTING.  157 

and  muft  by  no  means  leave  their  Rations  during  the   time  limited,  except 
forced  thereto  by  fome  damage  received,  or  by  ftrefs  of  weather. 

2.  By  Stat.  6  Ann.  c.  13. — Befides  the  line  of  battle  fhips,  forty  and  three 
others  were  to  be  employed  as  cruifers  and  convoys  for  the  better  prefervation 
of  trading  veffels ;  four  of  which  were  to  be  third  rates,  and  fixteen  fourth 
rates,  and  the  reft  of  fufficient  force  to  guard  our  commerce  ;  they  were  to 
attend  in  certain  ftations,  an4  the  commilfioners  of  the  admiralty  may  direft 
thofe  of  the  navy,  or  fome  one,  or  more  perfons,  refident  at  fuch  places  as  his 
Majefty  fliail  appoint,  to  fuperintend  and  overfee  every  thing  relating  to  thofe 
cruifers  ;  though  the  commiflTioners  of  the  admiralty  have  alfo  power  to  order 
any  of  the  fiid  fliips  to  be  employed  in  the  line  of  battle  in  cafe  of  need. 

3.  Several  fubfequent  ftatutes  have  confirmed  the  above,  and  increafed 
the  number  of  cruifers  as  neceffity  required  :  fo  that  by  thefe  prudent  precau- 
tions, during  war,  together  with  the  fignal  bravery  of  our  feamen,  and  vigi- 
lance of  our  privateers,  notwithftanding  the  vaft  number  of  thofe  of  tlie  enemy, 
our  maritime  intereft  is  well  fecured,  and  the  diftrefs  of  our  adverfaries  amply 
effefted. 

4.  See  Convoy,  Cruife,  Privateer. 

CUSTOM. 

i.  'TTHE  cuftom  of  merchants  is  to  be  attended  to  in  marine  infurances ; 
J-  and  when  the  praftice  and  ufage  among  them  are  notorious,  there  is 
no  occafion  for  any  further  proof  of  their  legality :  and  with  refpeft  to  thofe 
cuftoms  the  judges  may  inform  themfel ves  in  court :  and  in  maritime  affairs  may 
refer  themfelves  to  fkilful  and  experienced  feamen,  according  to  the  general 
maxim,  that  we  are  always  to  confult,  and  abide  by  the  evidence  of  perfons  of 
knowledge  and  ability  in  their  refpeftive  profeflions. — Roccits  231.  not.  68. — ' 
But  cuftoms  manifeftly  unjiij  ought   to  have  no  weight. — Shuback  194. 

2.     See  Prelim.  Difc.    20,   76.     Average,    Barratry,    Bottomry,  CotitraEly 
Laxo- Merchant,  Lofs,  Precedent^  Regulation,  Sea-Laws,  U/age. 

'£■•■' /j  b^i'i 

C     U     T  iT     I     N     G. 

1.  "TTTHEN  by  the  violence  of  the  wind  or  fea,  or  any  other  accident, 
^  V  a  maft  is  fplit,  fails  torn,  ropes  brQke,  or  any  other  damage  befalls 
the  rigging,  thefe  are  not  chargeable  to  average  ;  but  if,  for  avoiding  a  greater 
misfortune,  it  fliall  be  neeeflkry  to  caft  fuch  damaged  maft,  fails,  ropes,  and 
rigging  overboard,  or  to  cut  the  ropes  to  which  they  hung,  or  any  other 
detriment  be  done  to  (hip  or  goods ;  not  only  thefe,  but  the  rigging  which 
has  been  damaged  and  caft  overboard,  fiiall,  according  to  their  value  after 
being  thus  daftiaged,  be  made  good  by  average-contribution. — Ordin.ofKonigfb. 

R  r  2.     The 


158  CUTTING. 

2.  The  mafls  being  carried  away  with  the  fails  and  fhrouds  hanging  to 
them,  that  the  (hip  and  cargo  would  be  endangered,  unlefs  they  were  cut 
away;  fo  much  only  of  the  tackling  as  is  aftually  cut  away,  fliall  be  charged 
to  average. — Ordin.  of  Stockli. 

3.  Masts  with  the  fails  and  apparel  on  them,  being  brought  by  die  board 
in  a  florm,  and  hanging  to  the  fhip,  fo  as  to  damage  it,  in  cafe  they  had  not 
been  cut  away,  belong  to  general  average. — Ordin.  ofCopenh. 

4.  When  anchors  are  cut  away,  or  a  mafl,  and  when  fome  of  the  rigging 
or  fhip's  tackling  is  forced  to  be  cut,  or  thrown  overboard,  to  clear  the  malls, 
for  preferving  (hip  and  cargo,  it  fliall  be  deemed  general  average. — Ordin, 
of  Rott. 

5.  In  cafe  of  neceffity,  a  fhip's  moorings  may  be  cut,  when  the  mafter  or 
others  on  board  refufe  to  cad  oft,  after  repeated  requifitions  to  them  to  do  fo. 

— Ordin.  of  France. But  if  it  was  not  in  their  power  to  do  it,  through  fome 

embarraffment,  in  fuch  cafe  the  lofs  or  damage  of  thofe  moorings  fliould  be 
deemed  a  general  average,  in  like  manner  as  is  ufual  in  cafes  of  fliips  unavoid- 
ably running  foul  of  each  other. — 2  Valins  Comm.  485. 

6.  Remark. — Cutting  does  not  always  occafion  ?i  general  average :  it  is 
not  fufficient  that  there  was  a  cut ;  to  have  right  to  put  the  thing  cut  in  an 
account  of  grofs  average,  that  cut  mufl  alfo  have  been  made  with  no  other 
view  \h^.n  \hQ  common  prefervation : — therefore  in  regard  to  a  mafl,  part  of 
which  was  carried  away  by  violent  weather,  and  the  other  part  of  it  which 
was  not  carried  away  by  the  wind  was  cut  away  ;  this  was  not  for  the  common 
prefervation ;  on  the  contrary  it  is  evident  that  this  mafl  being  without  fail, 
a  fl;ump  of  which  only  did  remain,  could  not  hurt  the  fliip,  or  occafion  her 
lofs :  and  it  is  obvious  that  fince  the  mafl:  was  broke  by  the  wind,  and  part 
carried  away,  it  was  neceflary  to  cut  the  part  remaining  on  the  fliip  to  be 
enabled  to  put  another  mafl:  in  it's  ftead ;  therefore  no  general  average  arifes 
on  that  head. — In  regard  to  cordage,  tackle,  &c.  which  a  mafter  may  declare 
to  have  been  in  the  above-mentioned  circumftances  cut  to  avoid  greater 
misfortunes ;  fuch  lofles  are  no  more  grofs  average  than  the  former  ;  they  are 
on  the  contrary  unavoidable  confequences  of  the  gales  of  wind,  and  of  the 
fea  which  had  carried  away  the  maft,  and  pulled  the  top-maft  down  ;  for  it  is 
known  to  all  mariners  that  as  foon  as  a  maft  is  broke,  it  is  abfolutely  neceflary 
to  cut  the  cordage  and  tackling  whereby  it  is  ftill  held  :  this  cut  is  a  neceflary 
confequence  of  the  breaking  of  the  maft,  and  cannot  be  a  grofs  average  any 
more  than  the  breaking  of  the  maft  itfelf. 

7.     See  Accident,  Anchor,  Average,  Cable,   Contribution,    Cordage,    Deck, 
General  Average,  Running  foul. 

DAMAGE. 


D. 


DAMAGE. 

1.  t'  I  iHE  damages  which  the  infurers  have  to  bear,  are  defcribed   in  all 

I       poHcies : — however  a  diflinftion  is  every  where  to  be  made  between 

the  damage  that  may  happen  to  infured  goods  on  board  a  fhip,  and  that 

which  occurs  by  an  aftual  fliip-wreck ;   for  this  lafl  damage  is  without  doubt 

to  be  made  good  by  the  infurers ;   but  the  former  may  proceed  from  their  bad 

Jlowage,  or  their  being  put  in  a  place  expofed  to  wet ;    from  a  deficiency  in 

calking   of  the   decks,    or   otherwife ;    which  faults  the   fhip  ought  to  be 

anfwerable  for. — i  Mag.  50. 

2.  Insurers  are  not  anfwerable  for  damages  proceeding  from  the  fault 
of  the  majler  and  mariners,  for  want  of  good  tackle  and  cordage,  or  becaufe 
of  an  improper  working  of  the  fliip,  or  that  fhe  is  not  well  moored,  or  the 
hatches  not  well  fecured,  or  if  the  goods  have  not  hetn  v;t\\  Jlowed ;  as,  if 
dry  goods  be  placed  under  cafl<;s  of  oil,  brandy,  wine,  &c. ;  if  the  fhip  be 
overloaded ;  or  if  there  be  any  diminution  or  alteration  of  the  effefts. — By 
the  nature  of  the  contraft  of  infurance,  underwriters  are  only  anfwerable  for 
lofTes  that  happen  by  unavoidable  accidents,    which  are  entirely  foreign  to  the 

Jaults  and  negligences  of  maflers  and  mariners. — 2  Valin's  Comm.  79. 

3.  In  Spain,  when  goods  are  fhipt  upon  freight  for  the  Wefl-Indies,  it  is 
cullomary  to  pay  the  fhip  12^  rials  of  plate,  for  each  dozao  which  fuch  goods 
fiiall  contain  of  cubical  meafure :  and  for  that  money,  or  premium,  fo  paid, 
the  fiiip  is  obliged  to  make  good,  whatever  damage  may  appear  in  the  o-oods 
at  their  unloading  port: — hence  there  cannot  be  greater  care  taken  in  any 
country  than  in  Spain,  to  have  all  places  where  goods  are  Jlowed,  fo  well 
fecured  that  it  is  very  difficult  for  damage  to  reach  them  ;  for  nothing  ex- 
empts the  fliip  from  making  good  the  damages  received  : — neverthelefs  the 
fhip  is  not  obliged  to  fatisfy  for  jettifons,  unloadings  to  pafs  over  flats,  or 
other  common  rifques  that  are  to  be  borne  as  grofs  averages,  which  fall  jointly 
on  the  veffel,  cargo,  and  freight. — It  feems  however  a  very  flrange  cuftom, 
that  for  a  bale  of  gold  and  filver  fluffs,  meafuring  twenty  palms,  and  worth 
perhaps  4,000  dollars,-  no  more  premium  is  paid  to  infure  the  damage,  than 
for  a  bale  of  the  fame  dimenfions,  of  ferges,  not  worth  above  200  dollars. — 
But  notwithftanding  the    uimofl  precaution  is  ufed  in  fecuring  the    Spanifh 

fhips, 


i6o  DA        M        A        G        £. 

fnips,  as  already  hinted,  it  now  and  then  happens  that  they  have  great 
averages  to  pay.-  If- therefore  they  would  introduce  the  cuflom  of  having 
the  value  and  contents  of  each  bale  declared,  when  mcafured,  and  the  pre- 
mium for  them  paid  accordingly,  it  would  be  prafticable  to  get  fome  counter- 
infurance  made  againft  the  rifque  they  run ;  which  has  more  than  once, 
though  not  often  indeed,  been  the  caufe  of  a  mailer's  not  being  able  to 
comply  with  his  other  engagements,  fmce  fuch  damages,  or  their  value,  may 
be  detained  out  of  the  freight,  and  have  a  prior  right  of  payment,  to  any 
other  claims. — i  Mag.  51. 

4.  The  eftablidied  ufage  and  cuflom  is,  not  to  pay  damage,  until  full 
proof  of  fuch  damage  having  been  occafioned  by  the  violence  of  the  weather, 
&c.  \hthin  the  term  of  the  contraft,  and  of  the  voyage  infured  :  yet,  in  time 
6^  todr,  when  great  quantities  of  prize  goods  of  all  kinds  are  bought  on 
fpeculatidn  at  public  fales,  with  various  degrees  of  damage  and  defefts,  they 
are  fiequently  made  up  again  very  (lightly,  at  as  fmall  an  expence  as  poffible, 
and  re-fliipped  for  foreign  markets,  fometimes  in  (hips  with  lettet  of  marque 
U'hich  are  to  cruife  two  or  three  months,  exclufive  of  the  voyage  ;  and  as  high 
vdluniions  are  put  on  fuch  goods  in  the  policies  as  if  they  were  frefh  and  in 
their  original  perfe6l  {late  ;  fo  that,  in  cafes  of  the  leaft  accident  whatever, 
demands  are  made  on  the  underwriters  for  perhaps  double  or  treble  what 
fuch  goods  were  really  worth  at  the  time  of  their  being  lafl  fliipped  ;  and  that, 
by  producing   mere  certificates  of  the   damage,  from  interefled   perfons,  as 

having  all  happened  in  the  courfe  of  the  laft  voyage. Old  latent  defects 

ought  never  to  be  made  good  by  underwriters ;  yet,  when  they  are  engaged 
in  bad  fhips  they  run  plenty  ofrifques  ;  the  chance  of  foundering,  the  neccflity 
df  cutting  away  mafls,  when  the  Ihip,  by  hidden  defefts  proves  leaky,  or,  if 
Ihe  is  run  alhore,  of  being  entirely  demoliflied. 

J.  When  goods  arrive  damaged  in  any  of  the  ports  of  the  Britifh 
dominions,  but  efpecially  in  London,  notice  ought  to  be  immediately  given 
thereof  to  the  proprietors  or  confignecs,  and  by  them  to  the  infurers ;  in 
order  that  thefe,  or  their  agents,  may  nominate  proper  perfons  who  Ihould  be 
previoufly  appointed  and  alwavs  ready  on  their  behalf  to  attend  the  infpe6ling, 
feparating,  forling,  examining,  felling,  &c.  all  fuch  goods  to  the  beft  advantage, 
lirid  "to  certify  the  fairnefs  of  fuch  tranfaftions  on  oath. — ProA'ifion  is  made 
T)y  exprefs  authority,  in  mod  other  countries,  that  thefe  matters  be  honeflly, 
Vafefully,  and  fpeedily  performed,  and  due  juftice  done  to  the  parties ;  but, 
in  England,  from  the  total  want  of  fuch  regulations,  infurers  are  very  often 
fhamcfully  impofed  on. 

%.  It  is  too  frequently  pra6lifed,  when  goods  arrive  damaged  abroad,  to 
get  them  infpetled  by  interefled  friends  or  brokers  and  to  fend  hither  an  eflima- 
tion  of  the  damage  or  lofs :  but  on  the  part  of  the  infurers,  fpecial  caution 
fliould  be  ufed,   not  to  trufl  in  calculations  of  this  kind  to  fuch  reports,  but 

to 

..a 


D        A        M        A        G        E.  rQi 

to   iiifiil  on   a  demonflration  of  the  difference  in  the   real   and  aclual  fales. 
— 1  Mag.  267. 

7,  The  infured  may,  for  damage  done  to  his  goods,  or  fliip,  tlirough  the 
aft  or  fault  of  a  third  perfon,  proceed  at  law  againll  that  third  perfon  for  the 
damage  fo  done  : — but  if  the  infured  will  not  proceed  againfl  the  third  perfon^ 
who  then  is  bound  fo  to  do?  The  anfwer  is,  that  the  infurer  muft,  as  he  is 
liable  to  luffcr  on  account  of  that  damage  : — but  will  not  the  infured,  fliould 
he  proceed  againft  that  third  perfon,  hurt  his  intereft  with  refpeft  to  the 
infurer,  fo  far  as  to  difable  himfelf  from  having  recourfe  to  him,  in  cafe  that 
third  perfon  fliould  be  found  infolvent?— The  anfwer  is,  no;  becaufe  the 
infured  paid  the  price  of  the  rifque  to  the  infurer,  who  is  therefore  anfwerable 
not  only  iny^i(^t/m?;i,  hwx.  principaliter. — Roccus,  p.  174,  not.  2^. 

8.     Case. — This  came  before  the  court,  upon  a  queflion  referved  by  Lord 
Mansfield  at  nifi  prius  at  Guildhall,  on  a  policy  of  infurance. — The  infurance 
was  made  upon  the  one-fourth  part  of  the  fhip  Encouragement,  and  of  it's 
cargo,  from  Greenland  to  London,  free  from  average  under  a  certain  valuCj 
from  the  ice  : — the  plaintiff  declared  upon  a  total  lofs  of  the  fhip  :    the  decla- 
ration exprelsly  flated  a  total  lofs  of  it ;    and  the  damages  were  laid  for  a  total 
lofs  ;    but   the  evidence  only  proved  an  average  or  partial  lofs :   it  was  not 
attempted  to  prove  a  total  one  ;    and  it  was   only  fiiewn  that  the   fhip  had 
received  fome  damage   (which  a  little  more  than  50I.  would  have  repaired). — 
The  defendant's    counfel  objefted,  at  the   trial,  "  that  this  evidence   did  not 
maintain  the  plaintiff's  declaration  ;"   and  they  reprefented  the  praftice  to  have 
been  on   their  fide  :     viz.  "  that  proof  of  a  partial  lofs  was  not  fufficient  to 
fupport  a  declaration  for  a  total  lofs." — A  verdict  was  taken  for  20I.  as  for  an 
average  lofs ;    but  it   was  agreed  on  both   fides,  that  this  verdift  fliould  be 
fubje6l  to  the  opinion  of  the  court,  "  whether  it  was  maintainable  in  point  of 
hiw  :"' — if  the  court  fliould  be  of  opinion  "  that  it  was,"  then  the  plaintiff  was 
to  have  judgment ;    but  if  the  court  fliould  be  of  opinion  "  that  it  was  not," 
dien  the  plaintiff  was  to  be  non-fuited. It  was  now  argued  by  the  defend- 
ant's counfel,  that  this   aftion  is   in  the  nature  of  a  fpecial  aftion  upon  the 
cafe  ;    and    the  plaintiff  refts  his  cafe  upon  a  total  lofs  of  the  fhip :    it  is  not 
laid  as  a  confequence  of  the  events  fet  forth  in  the  declaration;    but  he  has 
made  this  the  gift  of  his  aftion : — the  damages,  they  faid,  muft  be  taken  upon 
this  record,  to  have  arifen  from   a  total  lofs :    and  the  jury  are  obliged  to 
give  damages  agreeable  to  the  plaintiff's  own  exprefs  allegation  ;    and  cannot 
take  into  their  confideration  any  damages  that  are  not  alleged  :    and  here   is 
no  allegation  at  all  of  any  average  damage  :   they  denied  that  any  thing  was 
put   in  iifue,  upon  the  non  affumpfit  pleaded,   but  the  total  lofs,  which  the 
plaintiff  has  alleged,  and  the  defendant  has  denied  :    and  they  faid,   that  the 
tiefence  upon  an  average  lofs  was,  or  at  leaft  might  be,  quite  different  from 
the  defence  upon  a  total  lofs  : — they  added  that  if  the  defendant  had  chofen  to 
fuffer  judgment. to  go  by  default,  it  muff  have  been  taken  upon  this  record, 
^hat  he'  had  acknowledged  it  to  be  a  total  lofs :    and  the  damages  muff  have 

S  f  been 


i62  DAMAGE. 

been  aflefTed  agaiuft  him  accordingly  ; — they  faid  this  was  not  like  the  cafe  ol 
Walker  V.  The  Royal-Exchange  AJJurance-Company,  in  1746,  at  nifi  pvius,  be- 
fore Lord  Chief  Juflice  Lee  :  which  was  an  adion  of  covenant  upon  a  policy 
of  infurance,  for  800I.  on  the  fliip  Argyle,  from  to  Vienna  :— the 

breach  alTigned  was,  "  that  before  the  Ihip's  arrival  at  Vienna,  (he  was  taken 
by  enemies,  and  thereby  totally  loft  -."—the  defendant  alleged  "  that  (he  left 
her  convoy  improperly ;  that  fhe  was  retaken  by  an  Engliftiman  of  war  ;  that 
flie  was  thereupon  fold  ;  that  one-eighth  of  the  value  was  paid  to  the  re-taker ; 
that  the  reft  of  the  purchafe-money  was  left  at  Oporto,  in  the  hands  of  the 
Englifti  Conful."     And   the  defendant's  counfel  objefted,  "  that  upon  thefe 

circumftances,  the  ftiip  was  not  totally  loft." It  was  anfwered  on  the  plain- 

xiff''s  part,  "  that  the  objection  would  not  hold :  for  that  notwithftanding  the 
o-ecapturc,  it  was  a  total  lofs  by  the  capture ;"  whereas,  in  the  prefent  cafe, 
here  is  only  a  partial  lofs  :  fo  that  the  two  cafes  do  not  refemble  each  other : — 
they  cited  the  cafe  of  Hambleton  v,  Veere^  2  Saund.  169.  as  being  more 
appofite  to  the  prefent  cafe  :  they  alfo  cited  2  Strange  1250.  Dean  v.  Dicker ^ 
to  prove  that  "  a  recapture  does  not  hinder  it's  being  a  total  lofs,  when  it  had 

once  become  fo  by  the  capture." The  court  were  clearly  of  opinion  with 

the  plaintiff,  even  without  hearing  his  counfel. — Lord  Mansfield  :    at  the  trial, 
it  appeared  tome,  andfo  thejuiy  thought,   that  the  prefent  cafe  could  not  be 
confidered  as  a  total  lofs  :  the  defendant's  counfel  objefted  (as  they  do  now) 
*'  that  the  jury  could  not  take  a  partial  lofs  into  their  confideration,   upon  an 
exprefs  declaration  for  a   total  lofs ;"  and   I  underftand  from  them,  that  the 
pra6lice  fupported  their  obje6lion.     Mr.  Norton,  who  was  of  counfel  for   the 
plaintiff,  at  the  trial,  then  argued  to  the  contrary,  upon  principles :  and  he  alfo 
cited  the  cafe  of  Walker  v.  The  Royal- Exchange  AJJurance-Company  (but  that 
does  not  prove  much  ;  becaufe  that  was  a  total  lofs) :  I  was  fatisfied  upon  the 
principles,  provided  the  praftice  did  not  interfere  with  them  ;   which  I  was 
then  told  it  did.     I  chofe  to  put  it  in  fuch  a  ftiape,   that  the  opinion  of  the 
court  might  be  had  without  delay  or  expence  :   no  hardftiip  was  done  to  the 
defendant,   upon  the  quaJitum  of  the  damages  found  :    for  the  plaintiff  took  a 
great  deal  lefs   than  it   clearly  appeared  upon  the  evidence  that  the  lofs 
amounted  to.     I  cannot  hear  of  any  fuch  determination  as  can  fupport  the 
objeftion  that  has  been  made  by  the  defendant's  counfel :    therefore  it  ftands 
fmgle  upon  principles :    and  upon  principles,   it   is  extremely  clear  that  the 
plaintiff  may,   upon  this  declaration,  recover  damages  as  for  a  partial  lofs  : 
this  is  an  a6lion  upon  the  cafe  ;   which  is  a  liberal  aftion ;    and  a  plaintiff  may 
recover  lefs  than  the  grounds  of  his  declaration  fupport,  though  not  more : 
this  is  agreeable  to  juftice,   and  confiftent  with  his  demand  : — here  are  two 
grounds  of  the  plaintiff's  declaration ;   viz.  the  policy,  and  the  damage  to  the 
fhip  : — as  to  it's  being  a  total  lofs,  or  a  partial  lofs,   that  is  a  queftion  more 
applicable  to  the  quantity  of  the  damages,  tlian  to  the  ground  of  the  aftion : 
the  ground  of  the  aftion  is  the  fame,  whether  the  lofs  be  partial,  or  total : 
both  are  perils  within  the  policy : — as  to  the  defendant's  not  coming  prepared 
to  defend  a  partial  lofs,  this  indeed  would  be  an  objeftion,  if  it  was  true  ; 
but  the  defendant  does,  in  truth,  come  prepared  to  ftiew,  "  that  either  no 

damages 


DAMAGE.  163 

damages  had  happened  at  all ;  or,  at  leaft,  that  damages  have  not  happened 
to  fuch  a  degree  as  the  pkiintifF  has  alleged  in  his  declaration  ;"  or  "  that  he 
did  not  fign  the  policy.'" — As  to  the  effefls  of  a  judgment  by  default,  the 
defendant  could  not  have  been  hurt  by  a  judgment  by  default ;  for  the  plain- 
tiff could  not  have  recovered,  even  upon  a  writ  of  enquiry,  any  greater 
damages  than  the  plaintiff  could  prove,  to  the  jury  fworn  to  allefs  them, 
"  that  he  had  aftually  fuffered." — If  the  prefent  objection  was  to  prevail,  it 
would  introduce  the  addition  of  unneceffary  counts  in  declarations  and  an 
enormous  fwelling  of  the  records  of  the  court :  it  is  more  convenient  to  lay 
the  cafe  fliort,  than  prolix.  There  is  no  proof  of  any  practice  contrary  to 
the  principles :  it  was  the  apprehenfion  of  fuch  a  contrary  practice,  that  was 
the  only  occafion  of  my  having  any  doubt  at  the  trial :  I  am  now  fully  fatisfied 
that  the  plaintiff  may  recover  either  the  whole,  or  lefs,  than  he  has  laid : 
and  therefore  this  verdift   ought,  in  my  opinion,  to  ffand.     In  an  eje6lment 

for  more,   the  plaintiff  may  recover  lefs  :   'tis  every  day's  praftice. Mr. 

Juftice  Denifon  concurred  ;  and  thought  it  a  ver)'  plain  cafe  :  it  is  an  a£lion 
for  damages  for  the  lofs  of  the  fliip :  now,  in  an  aftion  for  damages,  the 
plaintiff  is  to  recover  his  damages,  according  to  his  proof,  pro  tanto ;  but  he 
is  not,  in  an  aftion  for  damages,  obliged  to  prove  all  that  he  has  alleged. 
If  it  had  been  an  aftion  of  covenant  for  pulling  down  a  houfe,  would  not  the 
plaintiff  be  entitled  to  recover  damages  for  pulling  down  half  the  houfe,  pro- 
vided he  had  proved  that  the  defendant  did  it  ?  This  is  no  variance  of  the 
evidence  from  the  declaration  :  the  evidence  tends,  in  a  certain  degree,  to 
the  proof  of  what  is  alleged  in  the  declaration  :   it  is  not  necelTary  to  lay  two 

counts  in  fuch  a  declaration  as  this. Mr.  Juftice  Fofter   concurred  in  the 

opinion  "  that  the  verdi6l  ought  to  ftand." Mr.  Juftice  Wilmot  alfo  con- 
curred ;  he  faid,  that  in  actions  for  damages  the  plaintiff  may  recover  all,  or 
for  any  part:  the  damages  are  feverable,  and  may  be  given  j^ro  ^a?z^o;  here 
damages  are  laid  for  a  total  lofs  ;  which  is  only  the  meafure  of  the  damages  : 
and  the  plaintiff"  proves  a  partial  lofs  ;  which  only  affefts  the  meafure  of  the 
damage,  but  it  is  no  variance  from  the  allegations  contained  in  the  declara- 
tion :  and  if  this  had  been  a  judgment  by  default,  yet  the  plaintiff  would  not 
even  in  that  cafe,  have  recovered  damages  for  any  more  lofs  than  he  was 
able  to  prove  under  the  writ  of  enquiry  of  damages :  and  as  to  the  defend- 
ant's not  having  fufficient  notice  that  he  ftiould  come  prepared  to  defend 
againft  a  partial  lofs  ;  I  think  he  has  fufhcient  notice  to  come  thus  prepared ; 
for  he  ought  to  come  prepared  to  prove,  "  that  no  damage  at  all  happened :" 
if  any  at  all  happened,  he  will  be  liable  pro  tanto,  if  it  be  proved. — Per 
curiam  unanimoufly,  let  the  poftea  be  delivered  to  the  plaintiff. — 2  Burr.  904. 
25ih  of  January  1760. — Gardiner  \.  Crofdale. 

9.  See  Prelim.  Difc.  45.  Abandonment,  Abatement,  Accident,  Anchor, 
Average^  Barratry,  Certificate,  Commodity,  Contribution,  Cordage,  Corn,  De- 
claration, Deviation,  Eajl-India  Ships,  EJlimate,  Free  of  Average,  Freight, 
Goods,  Greenland,  Infufficiency ,  Lofs,  Market,  Mafier,  Negligence,  Pecfe, 
Perifiiable  Commodities,  Policy,  Profit,  Rats,  Repair,  Refpondentia,  Running 

Foul, 


i()4  DECEIT. 

Foul,  Salvage,  Ship,  Spain,  Sloiuage,  Strandiyig,  Total  Lofs,  Valuation.  Wear 
and  Tear. 


DATE. 

1,  A  MONGST  the  various  means  bv  wliich  underwriters  are  continually 
-^^  liable  to  be  deceived  and  inipofed  upon,  there  are  none  which  furnilh 
more  opportunites  for  the  exercife  oi  fraud,  nor  is  it  ni  any  refpeft  more 
frequently  pra6iifed,  than  in  concealments  and  viifrcprefcntations  of  the  dates 
of  advices  and  intelligence  received  by  the  affured,  and  of  the  exaft  time  at 
which  fuch  dates  came  to  their  hands,  or  knowledge :  and  thefe  concealments 
and  mifreprefentations  are  often  fo  artfully  managed,  and  infurances  are 
contrived  to  be  ordered  and  effected  fo  nicely  and  dextcroufly  in  point  of  time 
(although  after  the  arrival  of  fuch  information,  either  to  the  aH'ureds  them- 
felves,  or  to  fome  of  their  friends,  who  have  communicated  it  to  them) 
that  even  when  any  light  can  be  difcovered,  fubfcqucntly,  by  the  enquiries  of 
the  infurers,  in  confequence  of  fufpicious  circumflances  arifmg  from  the  event ' 
of  a  lofs,  it  generally  proves  to  be  matter  of  extreme  difficulty  and  expence 
fufficiently  to  afcertain  the  fafts,  and  to  bring  forth  legal  evidence  of  fuch ' 
concealments  and  mifreprefentations  ;  becaufe  men  who  are  capable  of  being 
guilty  of  them,  in  order  to  quiet  theif  fears  and  apprehenfions,  and  to  fave 
themfelves  from  the  imminent  danger,  or  perhaps  certainty,  of  lofs,  will  not 
fcruple,  even  on  oath,  to  ufe  the  moft  palpable  fubterfuges  and  cvajions  to  gain 
their  point. — It  is  therefore  of  the  utmofl  confequence  for  underwriters  to  be 
conftantly  upon  their  guard,  at  the  time  of  policies  being  prcfented  to  them 
for  their  fubfcription  ;  and  to  make  the  molt  particular  enquiries  in  regard  to 
the  latejf,  dates  of  letters  of  advices,  orders,  Sec.  and  even  of  fuch  verbal 
informations,  as  may  have  been  ultimately  received  by  the  affured  ;  efpecially 
in  time  of  war,  or  hoftilities,  and  when  the  voyages,  fliips,  goods,  &c.  meant 
to  be  infured,  are  in,  or  expefted  from,  remote  parts  of  the  world  : — for 
otherwife,  and  by  that  •eafy  confidence  and  reliance  on  the  good  faith  and 
honour  of  affureds  and  brokers  which  generally  prevails  on  the  part  of  under- 
writers, the  latter  mmII  in  too  many  inllances  find  themfelves  egregioufly 
deceived  and  defrauded. 

2.     Ske  Prelim.  Difc.  28,  33,  38,  "ii^fY^^.    Brokfr,    Concealment,    Fraud, 
Intelligence,    Lives,    War.  ■'■■.'.  .'r -A 

.j^O^.TU:.!-— .- 
D        E        C        E        I        T. 

"^izz  Prcli7n.  Di/ci  \ig,  4S:  Concealment,   Date,   Fraud,   Infured,  Intelligence, 
*"  Payment^  Rifiue. 

t  :cn  DECK. 


DECLARATION.  i6s 

DECK. 

1.  /^  OODS  flowed  upon  deck,  or  hanging  without  board,  either  with  or 
VX  without  the  confent  of  the  freighter,  or  the  (hip's  hat  lafhed  to  the 
fide,  if  after  the  lading  be  completed,  and  the  fhip  is  under  way,  they  are  not 
taken  within  board,  are  not  entitled  to  any  amends  or  contribution,  though  cut 
away  or  cad  overboard  for  the  general  fafety ;  yet  (hall  they  be  obliged  to 
contribute  in  cafe  any  average  has  been  the  means  of  faving  them. — Ordin, 
of  Konigjb. 

2.  All  goods,  that  lay  upon  the  deck  of  a  (hip,  if  they  are  thrown  over- 
board or  damaged,  are  not  to  be  paid  for ;  but  when  they  are  preferved,  they 
mud  neverthelefs  contribute  towards  the  , other  goods,  that  were  flung  over, 
referving  however  to  the  owner  of  them  his  demand  upon  the  captain. — • 
Or  din.  of  Hamb. 

3.  S^^  Commodity,  Contribution,  Damage^  General  Average,  Stozoage^ 

DECLARATION. 

1.  /^ASE. — This  was  a  queflion  (upon  the  mafl:er's  report)  "  whether  theref 
V-^*  were  or  were  not,  more  counts  inferted  in  the  declaration,  than  were 
neceflary?" — It  was  a  declaration  upon  a  policy  of  infurance,  confifl;ing  of 
/even  counts;  ift,  for  a  total  lofs  on  a  policy  fubfcribed  by  the  defendant 
himfelf;  2d,  for  an  average  lofs  (averred  to  amount  to  63I.  4s.  6d.)  on  a 
policy  fubfcribed  by  the  defendant  himfelf;  3d,  for  61.  per  cent,  to  be  returned 
(it  being  averred  that  the  fliip  departed  with  convoy)  on  a  policy  fubfcribed 
by  himfelf;  4th,  5th,  and  6th,  exaftly  the  fame  with  1%  2d,  and  3d  (refpec- 
tively)  with  this  difference,  only,  that  thefe  three  laft  counts  alleged  the  policy 
to  have  been  fubfcribed  by  one  Manoel  Francis  Silva,  the  defendant's  then 
agent,  faftor,  or  fervant,  in  that  behalf,  by  him  duly  authorifed,  appointed, 
and  deputed  for  that  purpofe  ;  7th,  for  money  had  and  received  to  the 
plaintiff's  ufe  : — the  mafter,  Mr.  Owen,  thought  that  four  counts  were 
fufficient ;  viz.  either  the  three  firfl;  with  tlie  laft,  or  elfe  the  4th,  5th,  and  6th, 

together  with  the  laft: — the   court  agreed  with  him   in   opinion. Lord 

Mansfield :  on  a  declaration  for  a  total  lofs,  you  may  recover  an  average  lofs : 
yet  I  would  not  tye  the  plaintiff"  down  to  declare  only  for  a  total  lofs ;  but 
leave  the  plaintiff^  at  liberty  to  declare  both  ways  :  and  the  latter  method  is 
often  of  fervice  to  a  defendant,  by  pointing  out  the  particular  average  that  the 
plaintiff  goes  for ;  but  it  is  unneceflary  to  declare  double,  with  refpeft  to  the 
figning  of  the  policy ;  that  is  to  fay,  once  as  upon  a  policy  figned  by  the 
defendant  himfelf ;  and  again,  as  upon  a  policy  figned  by  his  agent  for  him  : 
one  alone  of  thefe  two  methods  of  declaring  is  fufficient :  and  the  better  way 
is  to  declare  according  to  the  truth ;  that  is,  "  upon  a  policy  figned  by  Silva, 

T  t  as 


i66  DEPARTURE. 

as  agent  for  the  defendant  duly  authorifcd  by  him  in  that  belialf " The  rule 

at  lafl  fettled  by  the  court  was,  for  ftriking  out  the  three  firfl  counts  (which 
alleged  the  policy  to  be  figned  by  the  defendant  himfelf) ;  but  without  any 
payment  of  cofls,  as  this  manner  of  declaring  was  faid  to  be  ufual. — 2  Burr. 
1188.  Trin.  1  Geo.  3. — Nicklefon  v.  Croft. 

2.  By  Stat.  19  Geo.  2.  c.  37.  f.  6. — In  all  aftions  brought  by  the  alTured 
upon  any  policy  of  aflurance,  the  plaintiff  or  his  agent  Ihall,  within  fifteen 
days  after  he  is  required  fo  to  do  in  writing  by  the  defendant  or  his  agent, 
declare  in  writing  what  fum  he  hath  afliired  in  the  whole,  and  what  fums  he 
hath  borrowed  at  refpondentia  or  bottomry,  for  the  voyage,  or  any  part  of 
the   voyage  in  queflion. 

3.  See  Bottomry,  Damage,  Double-Infurance,  Prior-Infurance. 


DELIVERING       PORT. 

Si-i.  Africa,  End  of  Voyage  or  Ri/que,  Nctifoundland,  Sailors  Wages,  Voyage. 

DEMURRAGE. 

See    Contribution,    Copenhagen,    Detention,    General  Average. 

DEPARTURE. 

3.    OH  IPS    and   goods  already  departed   may  be  affured,  provided  that 

^  circumflance  and  the  time  of  departure  be  mentioned  in  the  policy  ; — 

unlefs  the  affured  be  ignorant  thereof:    in  which  cafe  however  it  mud  be 

expreffed  in  the  policy,  that  the  affured  had  no  knowledge  thereof. And 

the  affurers  fhall  alfo  be  permitted  to  prove  that  the  affured  had  knowledge 

thereof. Which  thus  appearing,  the  affured  fliall  not  only  have  no  aftion 

againtl  the  affurer,  but  fhall  befides  be  liable  to  pay  him  double  premium, 

over  and  above  the  charges  of  procuring  the  proofs. And  notwithflanding 

this,  the  officer  fhall  have  power  to  proceed  againfl  the  affured  as  a  deceiver. 
— Or  din.  of  Rott. 

2.  If  a  fhip  or  goods  be  delayed  in  the  loading  port  beyond  the  time 
mentioned  in  the  policy,  fo  that  it  does  not  depart  'till  a  later  fcafon  of  the 
year,  when  the  dangers  of  the  fea  are  greater,  the  infured  is  of  this  to  inform 
the  infurer,  who  as  he  runs  a  greater  hazard  is  entitled  to  fuch  an  addition 
to  the  firfl  premium,  as  was  current  at  the  time  of  the  fhip's  departure. — 
Or  din.  of  Stockh. 

p.    If 


DETENTION.  167 

3.  If  the  voyage  be  entirely  broken  before  tbe  departure  of  the  fliip,  by 
the  aft  of  the  affured,  the  infurance  fhall  be  annulled,  and  the  infurers  return 
the  premium,  referving  an  half  per  cent. — -Ordin.  of  France. 

4.  Here  is  an  advantage  which  the  infured  has  over  the  infurer  :  as  foon 
as  the  policy  is  figned,  the  infurer  cannot  go  back  from  it,  and  difengage 
himfelf  without  the  confent  of  the  infured  :  in  reality,  neither  can  the  aflured 
defift  from  the  infurance  againfl  the  will  of  the  infurer ;  but  what  he  hath 
not  the  power  of  doing  direftly,  he  may  do  indireB,ly,  either  in  breaking  up 
the  voyage  before  the  departure  of  the  fiiip,  or  not  putting  any  goods  on 
board : — if  however  the  goods  be  fliipped,  and  the  fliip  got  under  fail,  the 
infured  is  then  as  firmly  bound  as  the  infurer. — 2  Valins  Covim.  93. 

5.  See  Cancelling,  Commencement,  Convoy,  Copenhagen,  Intelligence,  RifquCt 
Sea/on. 

DESTINATION. 

Se'e.  Alteration  of  Policy  Voyage  or  Rifque,  Commencement  of  Voyage  or  RifquCf 
Deviation,  End  of  Voyage  or  Rifque,  Voyage, 


DETENTION. 

1.  A  S  to  detentions  by  a  fovereign  power,  a  diflinftion  is  to  be  made; 
-^^  for  if  a  fliip  be  embargoed  for  the  fervice  of  the  potentate  in 
whofe  port  flie  is  (which  all  princes  have  a  right  to  do)  and  a  propofal  be 
made  for  paying  by  way  of  hire,  or  otherwife,  for  fuch  detention  ;  whether 
that  prince  pay,  or  not,  for  the  time  he  detains  her,  flie  ought  to  bear  her  own 

charges  of  men's  viftualling  and  wages. In  the  laft  war  but  one  between 

England  and  Spain,  a  fleet  of  merchant  (hips  from  Carthagena  and  La  Vera 
Cruz,  v/ere  detained  by  order  of  the  Spanifh  court,  above  a  year  at  the 
Havanna,  to  wait  the  arrival  of  a  fufficient  force  to  convoy  them  home  : 
notwithftanding  the  expence  of  maintaining  a  fhip's  crew  there  runs  very  high, 
yet  the  owners  of  the  fliips  in  Spain  had  no  recourfe  againfl  any  of  their 
infurers,  nor  againfl  the  proprietors  of  the  cargoes ;  for  they  confidered  it  as 
an  accidental  occurrence,  or  mere  chance,  that  regarded  the  profit  or  the  lofs 
of  the  undertaking,  wherewith  the  infurers  had  nothing  to  do. — Verwer,  in 
examining  the  queflion,  whether  fuch  a  detention  by  a  foreign  power  ought  to 
be  brought  into  a  general  average,  or  not ;  very  properly  replies  by  propofing 
another  query  ;  Why  fhould  vi6lualling  and  men's  wages  be  deemed  a  general 
average,  rather  than  interefl  of  money,  and  the  damage  caufed  to  goods  by 

fuch  a  delay  ? On  the  detention  of  foreign  fhips  in  England,   during  the 

late  wars,  when  it  was  every  where  juflly  allowed,  that  demorage  fhould  be 
fatisfied  by  way  of  general  average,  the  maflers  in  their  demands  flrenuoufly 
infifled  on  having  fomething  allowed  for  xcear  and  tear :   but  this  was  rightly 

rejc6led. 


i68  D    E    V    I    A    T    I    O    x\. 

rejefted,  and  the  bare  wages  and  vi6lualling  the  men  only  admitted;  becaufe 
this  fort  of  demorage  is  quite  different  from  that  which  is  daily  ftipulated  to 
be  paid,  on  chartering  or  freighting  a  veffel,  when  not  only  the  men's  victuals 
and  pay  are  confidered,  but  alfo  an  interefl  for  the  owner's  capital,  or  what 
the  fliip  flands  them  in,  and  the  detriment  fhe  fuffers  by  lying  fo  much  longer 
than  was  at  firft  agreed  on. — i  Mag.  68,  69. 

2.  It  is  an  ordinary  matter  in  Spain  and  Portugal,  to  make  an  embargo 
upon  all  fhips,  at  the  departure  of  the  Wefl-India  fleet,  or  the  carracks,  for 
the  Eafl-Indies,  and  many  times  upon  other  occafions,  whereby  merchants' 
{hips  being  laden  are  much  hindered,  efpecially,  if  it  be  with  wines,  oils, 
raifins,  and  fuch  like  periJJiable  wares  : — now  if  the  owner  of  the  goods  fhall 
think  that  his  wares  do  perifh,  lying  two  or  three  months  laden,  or  if  it  be 
corn  that  may  become  hot  and  fpoiled  ;  he  may  renounce  thofe  goods  or  wares 
to  the  aflurers,  and  thereby  bring  a  great  lofs  upon  them  : — yet  neverthelefs 
he  (hall  not  need  to  abandon  the  goods ;  for  by  the  policy  of  affurance  it  is 
always  provided,  that  in  cafe  of  any  misfortune,  it  is  lawful  for  him,  his  faftor, 
or  affigns,  or  his  fervants,  or  any  of  them,  to  fue,  labour,  and  travel  for,  in 
and  about  the  defence,  fafeguard,  or  recovery  of  the  goods,  and  any  part 
thereof;  and  that  the  aflurers  fliall  contribute,  each  according  to  the  rate  and 
quantity  of  the  fum  by  him  aflured. — Mai.  Lex  Merc.  111. 

3.  Case. — A  fliip  infured  was  in  her  xoyagejeized  by  the  government  and 
turned  into  a  fire  fiiip  :  the  quefl^ion  was,  whether  the  infurers  were  liable  ? 
Holt,  Chief  Juftice,  thought  it  was  within  the  word  detention,  but  the  caufe 
was  referred. — 2  Salk.  444.     Hill.     1  Ann.     B.  R. 

4.  When  afhip  is  detained  by  any  fovereign  power,  then  the  aflured  fliall 
be  obliged  to  bear  the  days  of  demurrage  with  the  extraordinary  expences. 
' — Or  din.  of  Hamb. 

5.  See  Abandonment,  Average,  Capture,  Claim,  Contribution,  Embargo, 
General  Average,  Laio  of  Nations,  Seizure,  Wages^ 


DEVIATION. 

1.  '\T01a\]^TA'R.YAt\\?i\\ory,ioithoutrieceJj[ityorjuflcaiife,  from  the  due 
^  courfe  of  the  voyage  infured  as  defcribed  in  the  policy,  is  in  all  cafes 
a  determination  of  it :  from  that  moment  the  contraft  between  the  infurers 
and  infured  is  at  an  end : — it  is  immaterial  from  what  caufe  or  at  what  place 
a  fubfequent  lofs  arifes,  the  infurers  being  in  no  cafe  anfwerable  for  it : — and 
it  makes  no  difference  whether  the  owner  of  the  fliip  or  the  proprietor  of  the 
goods  infured  were  or  were  not  privy,  or  confenting  to  the  deviation ;  the 
rifque  being  confined  to  the  particular  voyage  mentioned  in  the  policy,  and 
extends   to  no  other. 

2.     An 


DEVIATION.  169 

2.  An  infurer  Is  underflood  to  incur  no  rifque  but  for  the  voyage  agreed 
upon,  and  for  no  other  ;  for  if  a  (hip  alters  its  courfe,  or  deviates  from  the 
direct  track  of  it's  voyage,  the  infurer  is  no  longer  bound  ;  unlefs  indeed  the 
mafter  alters  his  courfe  from  motives  of  neceffity,  fuch  as  to  refit  his  veffel, 
efcape  a  ftorm,  or  to  avoid  an  enemy ;  in  which  cafes,  notwithftanding  the 
alteration  of  the  fliip's  courfe,  the  infurers  remain  fully  bound. — Roccus, 
207,  not.  52. 

3.  Real  and  imminent  danger  of  fhipwreck,  Or  ftranding,  or  of  falling 
into  the  hands  of  enemies,  or  pirates  ; — contrary  winds,  florms,  a  neceflity 
of  obtaining  a  port  to  flop  a  leak,  or  repair  damages  ; — thefe  are  jvft.  and 
rea/onablc  caujes  of  deviating  from  the  direft  courfe  of  the  voyage. — Stracca, 
Kuricke,  Cafa  Regis,  Valin. 

4.  In  cafe  of  deviation,  the  infurers  are  not  bound  to  return  the  premium, 
becaufe  they  have  begun  to  run  a  rifque. 

5.  Case. — The  fliip  the  Gothlck  Lion  being  advertifed  to  be  going  to 
Marfeilles,  goods  were  fliipt  on  board  her  on  behalf  of  the  plaintiff,  and  a  bill 
of  lading  figned  by  the  mailer,  whereby  he  undertakes  to  go  a  droite  route  a 
Marfeilles ;  and  the  defendant  underwrote  a  policy  from  Falmouth  (where 
the  goods  were  taken  in)  to  Marfeilles : — before  the  fliip  departed  from  the 
port  of  London  another  advertifement  was  publiflied  for  goods  to  Genoa, 
Leghorn,  and  Naples;  and  the  plaintiff's  agent  was  told,  it  was  intended  to  go  to 
thofe  ports  firft,  and  then  come  back  to  Marfeilles  :  but  he  infilled  that  his 
bargain  was  to  go  firft,  or  direftly  to  Marfeilles,  and  he  would  not  confent  to 
let  her  pafs  by  Marfeilles,  or  alter  his  infurance :  the  fhip  however  did 
pafs  by  Marfeilles,  and  after  delivering  her  cargo  at  the  other  ports, 
fet  out  on  her  return  for  Marfeilles  with  the  plaintiff's  goods ;  but  in  her 
voyage  thither,  was  blown  up  in  an  engagement  with  a  Spaniffi  fliip. — And 
in  an  attion  upon  the  policy,  the  breach  was  affigned  as  a  lofs  by  the  barratry 
of  the  mafter:  and  the  plaintiff  infifted,  that  any  fraud  or  malverfation  of  the 
mafter  was  within  the  meaning  of  the  word  barratry : — Da  Frefne  terms  it 
*'  dolus  qui  fit  in  contra6libus  ;"  and  fo  do  all  the  diftionaries,  as  Florid s  Ital. 
Did.  verbo  baratteria ;  MinJIieu,  Furetier,  &c.  and  that  in  the  cafes  of 
Knight  and  Cambridge,  and  Knight  and  Dod,  where  the  lofs  was  laid  to  be 
pcrfraiidem  of  the  mafter,  the  court  held  it  a  good  affignment  of  a  breach, 

there  being  the  word  barratry   in   the  policy. The  defendant's  counfel 

infifted,  this  was  no  more  than  a  deviation,  in  which  cafe  the  infurer  is  dif- 
charged,  and  the  plaintiff's  remedy  is  againft  the  owner  or  mafter  :  that  this 
cannot  be  called  a  crime  in  the  mafter,  when  he  is  afting  all  the  while  for  the 

benefit  of  the  owners. The  chief  juftice  in  his  direftion  to  the  jury  told 

them,  that  this  being  againft  the  exprefs  agreement  to  go  firft  to  Marfeilles, 
feemed  to  be  more  than  a  common  deviation,  being  a  formed  defign  to  deceive 
the  contraftor  ;  and  compared  it  to  the  cafe  of  failing  out  of  port  without 
paying  duties,  whereby  the  fhip  was  fubjetledto  forfeiture,  and  which  has  been 

U  u  held 


ijo 


DEVIATION. 


held  to  be  barratry. The  jury  ftaid  out  feme  time,  and  upon  their  return, 

afked  the  chief  juRice,  "  whether,  if  the  mailer  was  to  have  no  benefit  to  him- 
felf  by  palTu-ig  by  Marfeilles,  and  went  only  for  the  benefit  of  his  owners,  that 
would  be  a  barratry  ?"  and  the  chief  juftice  anfwering,  no,  they  found  for  the 

defendant. And  now  a  new  trial  being  moved  for,  the  cafe  was  argued, 

and  all  the  court  was  of  opinion  that  the  verdi£l  was  right : — for  the  mailer  has. 
a6led  confident  with  his  duty  to  his  owners,  and  the  plaintiff's  agent  knew  of 
the  intended  alteration  before  the  goods  were  put  on  board,  and  might  have 
refufed  to  fliip  them,  or  have  altered  the  infurance. — "  To  make  it  barratry, 
there  mull  be  fomething  of  a  criminal  nature,  as  well  as  a  breach  of  contraft  ;" 
and  that  here  the  breach  being  afligned  only  on  the  barratry,  was  not  fup- 
ported  by  the  evidence: — ^fo  the  defendant  had  judgment. — Stran.  1173. 
16  Geo.  2. — Stamma  v.  Brown. 

6.  Case. — The  infurance  was  from  Carolina  to  Lin)on,  and  at  and  from 
thence  to  Brillol :  it  appeared  the  captain  had  taken  in  fait,  which  he  was  to 
deliver  at  Falmouth  before  he  went  to  Briftol ;  but  the  fhip  was  taken  in  the 
direft  road  to  both,  and  before  (he  came  to  the  point  where  fhe  Ihould  turn 
off  to  Falmouth  : — and  it  was  held  the  infurer  was  liable  ;  for  it  is  but  an 
intention  to  deviate,  and  that  was  held  infufficient  to  difcharge  the  underwriter. 

In  the    cafe  of  Carter  v.  The  Royal-Excha.  AJf.  Co.   where  the  infurance 

was  from  Honduras  to  London,  and  a  confignment  to  Avijlerdam ;  a  lofs 
happened  before  flie  came  to  the  dividing  point  between  the  two  voyages, 
which  the  infurers  were  held  to  pay  for. — Stran.  1249.  ^9  ^'^°'  2. — 
Forjler  v.  Wilmer. 

".  Case. — The  fliip  Mediterranean  went  out  in  the  merchants' fervice  with 
a  letter  of  marque,  and  being  bound  from  Briftol  to  Newfoundland  was  infured 
by  the  defendant : — in  her  voyage  fhe  took  a  prize  and  returned  with  it  to 
Briftol,  and  received  back  a  proportional  part  of  the  premium  : — then  another 
policy  was  made  ;  and  the  fhip  fct  out  with  exprefs  orders  from  the  owners, 
that  if  they  took  another  prize,  they  fhould  put  fome  hands  on  board  fuch 
prize  and  fend  her  to  Briftol ;  but  the  fhip  in  queftion  fhould  proceed  with  the 
merchants'  goods  : — another  prize  was  taken  in  the  due  courfe  of  the  voyage, 
and  the  captain  gave  orders  to  fome  of  the  crew  to  carry  the  prize  to  Briftol, 
and  defigned  to  go  on  to  Newfoundland  ;  but  the  creto  oppofed  him,  and 
infifted  he  fhould  go  back,  though  he  acquainted  them  with  the  orders  ; 
upon  which  he  -wz.^  forced  to  fubmit,   and  in  his  return  his  own  fhip  was  taken, 

but  the  prize  got  in  fafe. And  now  in  an  aftion  againft  the  infurers,  it  M^as 

infifted  that  this  was  fuch  a  deviation  as  difcharged  them  :  but  the  court  and 
jury  held,  that  this  wasexcufedby  the  force  upon  themafter,  which  he  could 
not  refift;  and  therefore  fell  widiin  the  excufe  o^neccjjity,  which  had  always 
been  allowed  : — the  plaintiff's  counfel  would  have  made  barratry  of  it ;  but 
the  chief  juftice  thought  it  did  not  amount  to  that,  as  the  fhip  was  not  run 
away  with  in  order  to  defraud  the  owners : — fo  the  plaintiff  had  a  verdict  for 
the  fum  infured. — Stran.  1 264.     20  Geo.  2. — Elto7i  v.  Brogden. 

8.    Case. 


DEVIATION.  iyi 

8.  Case. — If  after  a  policy  of  infurance  a  damage  happens,  and  afterwards 
in  the  fame  voyage  a  deviation ;  yet  the  aflTured  (hall  recover  for  what  hap- 
pened before  the  deviation  ;  for  the  policy  is  difcharged  from  the  time  of  the 
deviation  only. — Shoxccr,  129. — Kemp  and  Andrews. — 2  Salk.  444. 

9.  Case, — The  fliip  George  was  bound  from  Cork  to  Jamaica  with  a 
convoy  in  the  laft  war  : — 'the  captain,  in  concert  with  two  other  vefTels,  took 
advantage  of  the  night,  and  being  fhips  of  force,  cruifed,  and  hereby  deviated 
out  of  the  direcl  courfe  of  their  voyage,  in  hopes  of  meeting  with  a  prize. — 
Lord  Camden  and  the  jury  clearly  held,  that  from  the  moment  the  George 
deferted  or  deviated  from  the  dired  voyage  to  Jamaica,  the  policy  was  dif- 
charged.— In  C.  B. — Cock  V.  Townjbn. 

10.  Case. — A  (hip  infured  from  Liverpool  to  Jamaica,  put  into  Douglas 
Bay  in  the  Ifle  of  Man : — it  appeared  that  there  were  fome  inftances  of  the 
Liverpool  fhips  putting  in  there,  but  it  was  not  the  fettled,  eJlabliJJied,  common, 
and  direct  courfe  of  the  voyage  and  trade  ;  therefore,  it  was  held  a  deviation, 
and  difcharged  the  underwriters  from  any  lofs  that  happened  fubfequent  to  the 
deviation. — Salijhury  &  al.  v.  Tozciifon. 

11.  Case. — The  plaintiff  was  a  fliipper  of  goods  in  a  veffel  bound  from 
Dartmouth  to  Liverpool :  the  fhip  failed  from  Dartmouth,  and  put  into  Loo  ; 
a  place  (lie  of  neceflity  mull  pafs  by  in  the  courfe  of  her  infured  voyage  : — 
but  as  fhe  had  no  liberty  given  her  by  the  policy  to  go  into  Loo,  and  notwith- 
flanding  no  accident  befell  her  by  going  into,  or  coming  out  of  Loo  (for  flie 
was  loft  after  fhe  got  out  to  fea  again)  yet  her  going  into  Loo  was  a  deviation, 
and  a  verdift  was  found  for  the  underwriter. — At  Exeter  Allizes  in  1767, 
before  Sir  Jofeph  Yates. — Fox  v.  Black. 

12.  Case. — In  the  Belfaft  news-papers  of  the  23d  of  November  1770, 
there  appeared  an  advertifement,  that  the  brig  D.  then  lying  in  that  harbour, 
was  in  a  few  days  to  fail  for  Greenock,  and  was  taking  in  goods  for  that  port : 
accordingly  C.  in  Belfaft,  the  agent  of  B.  in  Glafgow,  fliipped  certain  goods 
belonging  to  his  conftituent  aboard  the  fame  brig,  and  got  from  the  mafter  a 
bill  of  loading  for  the  goods  to  be  delivered  at  Greenock :  upon  this  C. 
advifed  his  conftituent  by  letter  of  what  he  had  done,  in  order  to  infurance 
being  made  on  the  goods :  accordingly  B.  laid  the  advices  he  had  received 
from  his  agent  before  A.  who  thereon  underwrote  a  policy  for  the  value  of 
the  goods : — this  policy  is  in  the  ordinary  form,  and  thereby  he  "  aflured  to 
"  and  in  favour  of  B.  the  fum  of  1.  upon  all  and  whatfoever  kind  of 
"  goods  and  merchandifes,  laden,  or  to  be  laden  on  their  account  on  board 
"  the  (hip  D.  beginning  this  adventure  upon  the  faid  goods  and  merchandifes 
"  at  and  from  Belfaft,  and  to  continue  and  endure  until  the  faid  fliip  D.  with 
"  the  faid  goods  and  merchandifes,  fliall  arrive  at  Greenock  or  Port-Glafgow, 
*'  and  be  there  in  fafety  unloaded,  &c. :" — but  there  was  no  mention  in  the  policy 
of  the  velfel  being  to  difcharge  or  unload  any  part  of  her  cargo  at  any  other 

port 


172  DEVIATION. 

port  or  place  during  the  courfe  of  the  above  voyage. — Before  the  vefiel  failed, 

viz.  on  the  8th  of  December  1770,  the  mafler  took  out  a  clearance  from  the 

cuftom-houfe  at  Belfaft,  likewife  for  Greenock  only  :  this  clearance  contained 

the   fame  fpecies  of  goods  as  in  the  bill  of  loading. — The  vclfel   failed  from 

Belfiifl   on    Tuefday  the  11th   of  December  in  the   afternoon,  and  fhe  was 

wrecked  on  the  coaft  nearGirvan,   in  the  (hire  of  Ayr,  on  the  morning  of  the 

12th  the  next  day,  M'hen  every  perfon  on  board  perifhed :  but  the  following 

fafts  have  now  appeared,  from  which  it  is  infilled,  that  the  infurer  cannot  be 

made  liable  for  the  confequences  of  this  voyage  by  the   above  policy. — The 

fafts  are,   1.  that  the  fliip  in  queftion  did  proceed  from  Belfaft  on  a  voyage 

different  from  that  defcribed  in  the  policy :    that  this  voyage  was  a  fcheme  of 

trade,  not  only  concerted  and  agreed  to  by  the  owner  and  mafler  of  the  (hip, 

but  publickly  known  in  the  town  of  Belfafl  (where  the  faftor  who  fliipped  the 

goods  for  B.  did  refide)  eight  or  ten  days  before  thefe  goods  are  faid  to  have 

been  fliipped  : — 2.  that  this  concerted  voyage  was  from  Belfafl  to  Stranrawer 

and  Greenock,  and  not  from  Belfafl  to  Greenock  or  Port-Glafgow  direftly, 

as  mentioned  in  the  policy  : — 3.  that  goods  were  aftually  fhipped  in  the  faid 

veffel  for  Stranrawer,  to  be  there  delivered  before  the  fliip  fhould  proceed  to 

Greenock  ;    and  that  fhe  aftually  began  and  proceeded  on  the  faid   voyage 

from  Belfafl  to  Stranrawer,  in  which  flie  was  unfortunately  lofl,  having  been 

overtaken  by  the  florm  in  her  paffage  to  Lochryan  :■ — 4.  that  the  policy  was  only 

underwrote  by  A.  upon  the  12th  of  December,  upon  the  morning  of  which 

the  veffel  was  lofl ;  and  although  the  courfe  of  the  voyage  above  mentioned, 

differed  from  that  defcribed  in  the  policy,  and  was  publickly  known  in  Belfafl 

eight  or  ten  days  before  the  infured  goods  are  faid  to  have  been  fliipped,  yet 

\  A.  the  infurer,  never  was  informed  of  the  voyage  from  Belfafl  to  Stranrawer, 

neither  at  the  time  he  underwrote  the  policy,  nor  at  any  time  thereafter,  until 

he  received  information  of  it  from  different  perfons  fome  time  after  the  veflel 

was  loft  : — 5.  that  in  the  clearance  of  the  fhip  from  the  cuftom-houfe  at  Belfaft, 

there  is  no  mention  made  of  the  goods  faid  to  be  fliipped  by  the  agent  for  B. 

although  thofe  goods   are  mentioned  in   a  bill  of  loading  figned  by  the  fliip- 

mafter,  now  in  the  cuftody  of  B. The  allured  fays,  that  neither  he  nor  his 

agent  kncxo  of  any  intention  in  the  mafter  or  owner  to  call  at  Stranrawer,  and 
that  they  followed  the  faith  of  the  public  advertifement ;  and  believed  the 
fliip  to  be  bound  direftly  for  Greenock,  from  which  the  affured  concludes, 
that  he  ought  not  to  be  affefted  by  the  alteration  of  the  voyage  which  aftually 

happened. The  infurer  fays,  in  the   firft  place,  that  the  agent  at  Belfaft 

could  not  well  be  ignorant  of  what  was  publickly  known  in  the  place.  2dly, 
That  "  fuppofinghim  ignorant,  the  infurance  is  vacated,  as  a.  different  voyage 
■was  made  from  what  is  defcribed  in  the  policy." — And  the  court  of  feflTions 
decided  againft  the  infured. — Steven  and  Co.  v.  Douglas, 

Mr.  Dunning' s  O/'zmo^i  on  the  foregoing  cafe,  July  14th,  1772. — An  inten- 
tion to  deviate,  unlefs  it  be  followed  by  an  a6lual  deviation,  affords  no 
objeftion  to  a  policy  of  infurance  :  the  queftion  on  which  the  validity  of  this 
policy  depends,  is,  whether  there  was  in  fa6i,  any  intentional  deviation  from 
the  proper  courfe  of  the  voyage  from  Belfaft  to  Greenock,  before  this  lofs 

happened  ? 


D    E    V    I    A    T    I    1     N.  ,173 

happened  ?  If  the  veffel  had,  in  faft,  for  the  purpofe  of  landing  that  part  of 
the  cargo  which  was  deftined  for  Stranraxoer,  gone  into  that  port,  or  other- 
wife  gone  out  of  her  proper  track  to  Greenock,  the  pohcy  was  thereby  vacated, 
and  the  infurer  no  way  anfwerable  for  any  fubfequent  lofs :  but  if  the  Lo/s  in 
queflion  happened  before  the  Jliip  arrived  at  the  point  ivhere  Jlie  was  to  quit 
her  courfeto  Greenock,  in  order  to  go  firft  to  Stranrawer,  the  infurer  is,  in  my 
opinion,  compellable  to  make  it  good  ;  as  being  a  lofs  in  the  terms  of  the 
policy,  and  in  the  due  courfe  of  the  infured  voyage  to  Greenock. 

13,     Case. — A  merchant  in  Glafgow  having  occafion  to  fend  fome  tobacco 
.to  Hull,  applied  to  the  (hipping  company  at  Carron  for  freight ;    and  having 
forwarded  his  tobacco,  he  was  advifed  by  that  company  "  that  it  was  (hipped 
aboard  the  Kingfton,  which  would  fail  next  day  :"    at  the  fame  time  they 
fent  him  bills  of  lading ;  but  neither  the  letter  covering  thefe  bills  of  lading, 
nor  the  bills  themfelves,  nor  any  letters  prior  or  fubfequent,  nor  any  adver- 
tifement,  made  mention  of  the  velfel's  being  to  touch  at  any  other  port  on 
her  way  to  Hull. — Some  days  after,  the  merchant  applied  to  an  infurance- 
office  in  Glafgow,  for  a  policy  on  this  adventure  ;  and  having  obferved,  that 
thefe  coafting  Carron  veflels  fometimes  touched  at  different  ports  in  their 
voyage,  he  conceived  his  orders  in  a  general  way,  and  gave  it  to  the  broker 
in  the  following  words :  "  Pleafe  infure   for  my  account,  per  the  Kingfton, 
"  George  Finlay,  mafter,  from  Carron  to  Hull,  loith  liberty  to  call  as  u/ual, 
"  fourteen  hogfheads  of  tobacco,  at  38I.  los.  per  hog(head  value,  in  all  539!." 
— He  did  not  reftrift  the  broker  to  any  premium  :    the  broker  (hewed  this 
order  to  a  fet  of  underwriters,  who  refuled  to  take  it  with  the  general  claufe 
of  calling  as  iifual,  that  being  too  vague  an  exprelfion,  and  defired  an  expla- 
nation :    the  broker,  to  remove   this  objeftion,  obferved,  that  thefe  vellels 
ujually  called  at  Leith ;    upon  which  the   underwriters  agreed  to  fign  the 
policy,  if  filled  up  "  xcith  liberty  to  call  at  the  port  of  Leithr — The  broker, 
without  confulting  the  owner  of  the  goods,  (illed  up  the  policy  accordingly, 
and  the  policy  was  fo  underwrote  by  the  infurers. — The  merchant,  however, 
got  no  account  of  this  alteration  of  his  order,  till  the  lofs  happened  ;    which 
was  in. a  few  days    after  the   infurance .  was  made.     The  (hip   failed    from 
Carron,  did  not  call  at  Leith,   but  went  by  direftion   of  it's  owners   into 
Morrifon  s-Haven,  a  port  fix  or  eight  miles  beyond  Leith,  further  on  her 
voyage,  and  on  the  fame  fide  of  the  Frith  of  Forth,  whereJJieJlaid  fome  days, 
and  took  in  goods  :    but  this  was  all  unknown,  at  the  time  the  policy  was 
figned,  to  the  merchant,   the  underwriters,  and  the  brokers. — The  (hip  pro- 
ceeded from  Morrifon's-Haven,  and  was  the  next  day  loft  at  Holy-Ifland,  on 
her  way  to  Hull,  in  a  ftorm  of  fnow. — 'Under  thefe  circumftances,  a  difpute 
arofe,  from  whom  the  merchant  ought  to  recover  his  infurance,  and  whether 
the  underwriters,  brokers,  or  fliip-owners,  ought  to  be  liable  ? 

Mr.  Dunning' s  Opinion  :  June  24,  1774. — The  policy,  though  referred  to, 
is  not  produced  to  me,  but  prefuming  it  to  be  as  it  is  above  dated,  I  am  of 
opinion,  that  the  veflel's  going  into  Morrifon  s-Haven,  by  direftion  of  the 
Qwners,  to  complete  her  loading,  being  out  of  the  courfe  of  the  voyage,  was 

W  w  a  deviation. 


i;4  13    (^   V    I    iV    T    I    O    N. 

a  deviation,  and  difchargcd  the  underwriters. — ^From  the  underwriters  rejefting 
the  claufe  propofed  by  the  merchant,  it  (hould  feem  that  they  did  not  confider 
the  courfe  of  the  voyage  as  warranting  her  calHng  at  this  or  any  other  port, 
unlefs  it  were  particularly  fpecified :  and  from  the  broker's  departing  liom 
his  inftruftions,  and  inferting  a  provifion  in  favour  of  LeUh,  it  appears,  tliat 
he  thought  Leith  was  the  only  port  where  it  was  ufual  for  fuch  fhips  to  Hop: 
— ^it  is  probable,  liowever,  from  the  merchant's  inftruftions  to  the  broker, 
that  he  had  an  idea,  that  there  were  more  ports  than  one  at  which  it  was 
ufual  for  velfels  of  this  kind  to  call  :  it  will  be  proper  therefore,  in  order  to 
determine  on  whom  the  lofs  fhould  fall,  for  the  arbiters  to  enquire.  Whether 
it  has  been  fo  frequent  as  to  be  properly  denominated  vfuat  for  fuch  fhips  to 
call  at  this  port  ?  If  they  find  it  has,  it  will  be  clear,  that  if  the  broker  had 
purfued  his  inftruftions,  and  got  the  policy  underwrote  accordingly,  the 
underwriters  w'ould  be  anfwerable  in  the  event  that  has  happened ;  and 
confequently  that  his  confenting  to  an  alteration,  having  defeated  the  mer- 
chant's remedy  againfl  them,  he  (the  broker)  will  be  anfwerable  to  his 
principal ;  but  at  the  fame  time,  unlefs  it  has  beenfo  vfual,  that  all  concerned 
in  this  trade  mujl  be  fuppofed  to  know  it  xoithout  information,  it  is  certain,  that 
it  was  the  duty  of  the  owners  of  the  fhip  (or  their  agent,  for  whom  they 
are  refponfible)  to  inform  the  merchant,  whofe  goods  they  take  in  on  freight, 
that  the  fhip  was  to  flop  at  this  port; — they  therefore,  by  concealing  this 
circumftance,  and  by  their  bills  of  loading,  reprefenting  their  vovage  as  a 
direft  one  to  Hull,  feem  to  have  committed  the  iirfl  fault,  and  in  that  cafe 
the  lofs  fliould  ultimately  reft  on  them. 

Mr.  Wallaces  Opinion:  June  25,  1774. — There  can  be  no  doubt  upon 
the  right  of  the  merchant,  to  recover  a  fatisfaftion  for  the  injury  he'  has 
received  :  the  broker  having  deviated  from  the  order  of  the  merchant,  is  liable 
to  indemnify  the  merchant  from  the  confequences.  I  prefume  Morrifons- 
Havcn  is  a  place  where  fliips  do  not  ordinarily  touch  at  in  the  courfe  of  the 
voyage  from  Glafgow  to  Leith  ;  and  confequently,  by  the  fliip's  going  there, 
to  take  in  a  part  of  her  loading,  the  policy  was  difcharged ;  but  I  conceive 
the  owners  are  refponfible  to  the  merchant,  as  the  fhip  muft  be  fuppofed  to 
be  deftined  to  go  the  direft  rout  from  Glafgow  to  Hull,  unlefs  an  exception 
had  been  made  to  go  to  particular  places,  not  in  the  ufual  courfe  of  the 
voyage  :  and  I  do  not  find  the  leaft  intimation  was  given  to  the  merchant  of 
the  intention  to  touch  at  Morrifon's-Bay ;  fo  that  the  owners  appear  to  be 
ultimately  liable  : — it  will  be  material  for  the  arbitrators  to  be  fatisfied. 
Whether  Morrifon's-Bay  is  an  ifual  place  for  (hips  to  ftop  at  in  the  courie 
of  the  voyage  or  not  ?  If  it  be,  the  owners  of  the  flrlp  are  not  refponfible  ; 
but  in  that  cafe  the  underwriters  feem  liable. 

This  cafe  coming  before  x\\e  judge-admiral,  he  pronounced,  that  as  it  is  not 
alleged  by  the  defenders,  that  the  purfuers  were  in  the  knowledge  of  the  fhip 
the  Kingfton   libelled,  her  being  intended  to  put   into   Morrifon's-Haven ; 

repels    the   defences    pled    for   the    defenders,   &c. Upon   a   reclaiming 

petition,  the  judge  thought  proper  to  conjoin  the  three  feveral  a6tions,  viz. 
againft  the  brokers,  againll  the  Carron  company,  and  againft  the  infurers, 

and 


DEVIATION.  175 

and  to  pronounce  the  following  interlocutor ; — "  Having  confidercd  that 
"  the  defenders,  befides  the  general  point  of  law,  do  found  upon  what 
"  palled  at,  and  previous  to  the  making  of  the  infurance  libelled  betweeri 
"  Archibald  and  Gilbert  Hamiltons,  rnfurance-brokers,  relative  to  the  making 
"  of  the  faid  infurance,  and  upon  thefe  words  in  the  policy  of  infuranee 
"  produced  and  libelled  on,  viz.  "  being  alloxoed  liberty  to  call  at  Leitk;* 
"  allows  the  defenders  a  proof  of  all  fafts  and  circumOances  tending  to  (hew 
"  w'hat  pafTed  relative  to  the  making  of  faid  infurance  between  the 
"  defenders  and  the  faid  Meffrs.  Hamiltons  at  and  previous  to  the  making  of 
**  faid  infurance ;  as  to  all  which  allows  the  purfuers  a  conjunft  proba- 
"  tion,  and,  in  general,   allows  to  either  party  a  conjunft  probation   of  all 

"  facls  and  circumflances  which  they  may  think  material." The  infurers 

did  not  think  that  this  proof  was  at  all  incumbent  on  them  ;  and  having  again 
reclaimed,  the  judge  pronounced  the  following  interlocutor: — "  Having 
"  conlidered  that  the  defenders  do  decline  and  wave  bringing  any  proof  in 
"  terms  of  the  former  interlocutor,  of  date  14th  of  February  1775  ;  finds, 
"  that  in  all  cafes  of  infurance  of  goods  on  fhip-board  (belonging  to  others 
"  than  the  owners  and  mafter  of  the  fliip)  it  is  a  general  rule  in  law  and 
"  pratlice,  that  the  infurance  is  effettual,  although  the  lofs  might  have 
"  happened  in  a  deviation  from  the  courfe  of  the  voyage  upon  which  the 
"  infurance  is  made,  the  infured  not  knowing  of,  nor  confcnting  to  fuch 
"  deviation :  and  finds,  that  at  the  making  of  an  infurance  upon  fuch  goods 
"  on  fhip-board,  it  may  be  agreed  between  the  parties,  that  in  the  event  of  a 
"  deviation,  not  allowed  of  in  the  policy,  the  infui'ance  fhall  then  ceafe  and 
"  terminate,  and  not  be  further  effeclual  for  the  remaining  part  of  the 
"  voyage  ;  but  finds,  that  in  the  prefent  cafe,  there  are  not  fa6ls  fufficient  to 
"  infer  that  it  was  agreed,  the  infurance  was  to  terminate  and  be  no  further 
"  eifeftual,  in  cafe  of  a  deviation  for  the  remaining  part  of  the  voyage  :  and 
"  further  having  confidered  that  the  fnip  the  Kingfton,  after  going  into 
"  Morrifon's-Haven  and  failing  from  thence,  did  attain  to,  and  was  in  the 
•'•  direft  courfe  of  the  vo)age  from  Carron-wharf  to  Hull  when  fhe  was 
•'•■  wrecked  ;  finds,  upon  the  whole,  that  the  defenders  are  chargeable  with 
"  the  fums  underwrote  by  them  refpeftively,  and  therefore   adheres  to  the 

'■'  former  interlocutor  and  decreet." The   infurers  were  advifed  to  brino* 

this  matter  before  the  court  offejfion  by  fufpenfion  ;    and  offered  upon  their 
part  the  following  reafons  amongft  others : — that  they  have  hitherto  under- 
ftood  it  to  be  an  invariable  maxim  in  infurance,   that  where  a  voyage  is 
particularly  defcribed,  the  policy  is  vacated  and  difchargcd  the  inflant  that  a 
wilful  deviation  is  committed  ;  and  that  it  makes  no  difference  in  the  queftion, 
whether  this   happens  with  or  without  the  confent  of  the  infured,  if  it  does 
not  happen  by  order  or  confent  of  the  infurer : — from  the  interlocutors  of 
the  judge-admiral  your  lordfhips   will  fee,  that  he  has  entirely  gone   upon 
certain  foreign  ordinances,  which  feem  to  point  at  making  the  infurer  of  goods 
liable  in  the  cafe  of  a  deviation  happening  without  the  knowledge  or  confent  of 
the  infured :  but  in  the  late  cafe  before  your  lordfhips  of  Steven  and  company 
contra  Douglas,  your  lordfliips  came  to  be  clearly  of  opinion,  that  the  policy 

was 


ijG  DEVIATION. 

was  vacated  by  the  deviation,  although  the  infurance  was  made  in  the  fame  way 
as  here,  upon  goods,  put  on  board  by  a  third  party,  who  had  no  connexion 
with  the  fhip,  and  who  was  utterly  ignorant  of  any  intention  to  deviate;-^ 
that  the  dotlrine  of  deviation  is  now  fo  clearly  eftablifiied  by  tlie  practice  of 
the  courts  in  England,  that  the  fmcdleji  intentional  departure  in  that  rcfpeft 
from  the  exprefs  tenor  of  a  policy,  never  fails  to  liberate  the  underwriters : — '• 
that  if  the  policy  is  altered  by  a  deviation,  the  infurers   are   not  obliged  to 
qualify  any  lofs  or  additional  hazard  arifing  therefrom  ;  it  is  enough,  if  a  lofs 
has  happened,   from  whatever  caufe,  in  a  voyage  not  preci/cly  the  fame  with 
that  which  they  agreed  to  infure : — that  it  is  true,  that  by  ftrefs'  of  weather  a' 
fhip  may  often  be  forced  out  of  her  proper  courfe,  and  driven  to  take  fheker 
in  a  different  port  than  what  was  intended  ;  and  it  is  likewife  true,  that  fuch 
deviation  does  not  vacate  the  policy  of  infurance,  being  one  of  thofe  verv 
accidents  which  are  infured  againft :  the  adventure  is  not  here  changed  in  any 
Iliape,  the   voyage  continues    the   fame,   though  the  fhip  has  been  forced  vi 
majore  out  of  the  proper  courfe  :    but  the  cafe  of  an  intentional  deviation,  in 
order  to  touch  at  a  port  not  mentioned  in  the  policy,  is  extremely  different : 
by  fuch  deviation  the  chance  is  varied,  the  voyage  is  wilfully  altered  ;  and  the 
infurer  is  not  liable,  becaufe  it  does  not  fall  within  the  terms  of  the  policy, 
nor  is  any  premium  flipulated  for  the  hazard  thereby  incurred :    the   fhip  isr 
expofed  by  this  deviation  to  new  accidents,  the   circumflances    are   entirely 
changed,   and  it   would  be   unreafonable    that  the    infurer   fhould  continue 
bound: — that   the   prefent  cafe,   however,    does  not   depend   upon   general 
argument  alone  :  the  deviation  was  the  manifeft  caufe  of  the  lofs  :    had  the 
fhip  ftopt  at  Leith,  as  was  allowed,  there  was  no  probability  of  her  flaying 
there  above  half  a  day  :  the  wind  and  weather  were  favourable  for  the  voyage, 
had    fhc  only  touched    at  Leidi ;    but  proceeding  to  Morrifon  s-Haven  and 
detention  there,  taking  in  a  new  cargo,  expofed  the  vcffel  to  the  florm  in 
which  fhe  periflied  : — that  when  an   allowance  for   touching  was   in   view, 
debated  among 'the  parties,  and  fuch  allowance  fpecially  rejirided  to  Leith, 
it  is  impolfible  that  any  after  explanation  can  be  admitted,  without  deflroying 
every  fecurity  upon  vdiich  an  infurer  hazards  his  property  : — that  the  purfuers 
trufted  their  order  with  certain  brokers,  and  with  them  the  defenders  treated 
as  to  the  conditions  of  the  infurance  :    if  the  brokers  tranfgrefied  their  order, 
the  purfuers  may  have   recourfe  againft  them;   but  this  is  nothing  to  the 
fufpenders,  w'ho  were  at  liberty  to  decline  the  infurance  altogether,  or  to 
annex  any  conditions  that  fliould  be  agreed  upon  between  them   and  the 
brokers :  the  brokers  a6led  as  agents  for  the  owners  ;  and  if  the  brokers  have 
in  any  fhape  exceeded  their  orders,    they  muft  be  anfwerable  for  fo  doing  to 
their  employers,  who  have  accordingly  brought  an  atHon  againft  them  upon 
that  very  ground  : — that  every  circumftance  of  the  voyage  became  materially 
altered  by  the  deviation  into  Morrifon's-Haven  ;    but  it  is  enough  to  fay,  that 
in  the  prefent  cafe,  the  infurers  did  not  chufe   to  take  upon  them  the  rifqnc 
of  touching  at  Morrifon's-Haven :    if  the  doftrine  maintained  on  the  other 
fide  were  well  founded,  it  would  be  perfectly  idle   and  unneceflary  to  infert 
any  fuch  claufes  in  policies,  either  allowing  the  liberty  of  touching  at  differcnt. 

port-;. 


DEVIATION. 


^77 


ports,  or  difallowing  it ;  for  in  either  cafe,  it  is  maintained  by  the  charo-ers, 
tliat  if  the  fliipper  of  the  goods  is  ignorant  of  the  deviation,  he  is   fafc,  and 

the  infurer  muft  be  liable. It  was  faid,  that  the  lofs  in  this  cafe  happened 

after  the  fhip  had  come  back  into  it's  proper  courfe,  and  therefore  it  was  the 
fame  thing  as  if  no  deviation  had  happened  : — the  fufpenders  are  not  bound 
to  enquire  how  this  faft  ftands,  as  they  apprehend  it  to  be  a  clear  point,  that 
whether  the  place  where  fhe  was  loft  was  in  the  proper  courfe  from  Carron 
to  Hull  or  not,  a  deviation  having  once  been  committed,  there  was  an  end  to 
the  policy,  and  the  fame  could  not  revive  ;  fuppofing  the  fhip  had  not  only 
proceeded  in  a  direction  the  fame  with  that  which  fhe  would  have  taken 
from  Carron  to  Hull,  but  had  gone  on  fafely  in  that  courfe  'till  within  a  few 
yards  of  the  harbour  of  Hull. — The  doftrine  laid  down  by  all  lawyers  is, 
that  "  a  policy  is  difcharged  from  the  time  that  a  wilful  deviation  happens  :" 
a  new  rifque  is  then  commenced,  a  different  voyage  is  performed  : — "  had 
the  fliip  proceeded  in  her  voyage  without  turning  afide  into  a  port  not 
allowed  in  the  policy,  no  man  can  fay  whether  fhe  would  not  have  made  a 
prolperous  voyage  :  no  human  being  can  pronounce  that  the  deviation  was 
not  the  caufe  of  the  lofs  : — and  therefore  it  would  be  unjuft  and  contrary 
to  the  clear  intendment  of  the  tranfaftion.  to   fubjefcl;  the  infurers  in  fuch  a 

cafe. In   the  cafe    of    Pelly    againft    the  Royal-Excha.  AJf.  Co.   in   1757, 

it  is  admitted  by  both  parties,  and  is  laid  down  by  the  court,  that  a  deviation 
determines  an  infurance,  and  difcharges  the  infurer: — in  the  cafe  of  M' Nair, 
which  will  be  remembered  by  your  lordfhips,  fundry  inftances  of  the  pra6lice 
and  underftanding  of  merchants  were  laid  before    the  court ;    among  others, 
it  was  affirmed  and  not  denied,  that  if  a  vefTel  bound  from  America  to  Clyde, 
ftiould  put  into  the  Ifle  of  Man,  no  fuch  thing  being  mentioned  in  the  policy, 
and  if  the  fhip  fhould  be  loft  any  time  fubfequent  to  the  deviation,  even  after 
fhe  had  left  the  Ifte  of  Man  and  returned  into  the  proper  track,  the  infurance 
is  held  to  be  void  : — it  was  further  mentioned  as  a  remarkable  inftance,  how 
far  this  was  carried  among  merchants,  that  the  veflels   from  this  country  to 
Jamaica,  having  occafion  to  pafs  in  their  courfe  fo  near  the  Leeward-Iflands, 
that  it  was  ufual  to  fend  their  boats  afliore  with  letters,  yet  the  mafter  durft 
not  venture  on  fo  trifling  a  variation  as  to  carry  in   the  vefTels   themfelves  to 
any  of  thofe  ports,  if  they  were  not  mentioned  in  the  policy  of  infurance  : — 
that  indeed  if  any  point  can  be  faid  to  be  fixed  in  the   mercantile  law  of 
Britain,  it  is,   that  "  the  fmalleft  voluntary  deviation,  unlefs  in  the  cafe  of 
barratry,  vacates  the  infurance,   whether   fuch  deviation  is    made    with    or 
without  the  knowledge  of  the  party  infured :"  and  the  principle  upon  which 
it  is  founded  is  clear  to  demonftration,    viz.  that    "  the   infurer  undertakes 
nothing  more  than  the  rifque  defcribed   in  the  policy :    he    underwrites  a 
particular  voyage,  and  with  and  under  particular  qualities   and  conditions  fet 
forth  in  the  policy,  which  is  the  contracl  of  infurance  :" — that  the  one  voyage 
is  infured,  and  the  other  not ;  and,  in  the  nature  of  things,  it  is  impoffible  to 
afcertain  whether  this  ftiip  would  have  been  loft  or  not,  had  ftie   called  at 
Leith,  and  had  not    gone   into  Morrifon's-Haven :    the  prefumption,    from 
circumftances,  rather  is,  that  fhe  would  have  gone  fafe  ;  "  the  very  difference 

X  X  of 


178  D    E    V    I    A    T    I'  O    N. 

of  a  few  minutes  in  point  of  time,   or  a  few  yards  in  point  of  diflance,  is 

material  in  fuch  a  cafe." The  chargers  will  produce  no  author,  either 

Britifh  or  foreign,  who  lays  it  down  as  law,  that  a  policy  is  not  vacated  where 
a  particular  voyage  is  defcribed,  with  liberty  to  touch  only  at  a  certain  port 
or  ports  therein  mentioned,  and  where  a  deviation  has  been   made,  whether 

with    or  without    the    confent    of  the    infured. Where   a   deviation    is 

performed  by  direftion,  or  with  confent  of  the  owners  or  freighters,  or 
principal  owners  or  freighters,  as  a  fcheme  of  trade,  although  any  particular 
fhipper  of  goods  may  be  ignorant  of  it,  fuch  voyage  is  different  from  that 
which  is  infured,  and  the  infurer  cannot  be  liable  ;  although  the  infured  may 
no  doubt  have  recourfe  againft  thofe  by  whofe  aft  and  deed  he  was  mifled, 
and  was  prevented  from  making  his   policy  in  fuch  way  as   to  fubjeft  the 

infurer. The  ports  and  places  at  which  the  fhip  fhall  touch,  or  put  in 

during  the  voyage,  mufl  be   mentioned  in  the   policy : the   fufpenders 

never  founded  upon  the  verbal  communings  with  the  brokers  as  in  any  fliape 
material  to  the  caufe,  or  as  capable  of  any  other  proof  than  that  which 
arifes  ex  facie  of  the  policy  itfelf,  compared  with  the  original  written  inftruc- 
lions  given  by  Wilfon  and  company  to  the  brokers :  thefe  afford  complete 
evidence  of  the  res  gejia,  without  the  neceffity  of  any  aid  from  parol-evidence : 
the  tenor  of  the  original  inftruftions  is  proved  by  the  writing  itfelf  produced, 
and  the  final  agreement  between  the  parties  is  proved  by  the  policy,  the 
terms  of  which  mull  no  doubt  be  binding  on  both  parties  ;  but  it  is  equally 
clear,  that  they  have  nothing  to  do  with  any  claufe  or  condition  which  may 
have  been  originally  propofed  and  not  ultimately  agreed  to. — It  is  exprefsly 
admitted  by  the  chargers  in  one  of  their  memorials,  where,  after  Hating  the 
terms  of  their  order  to  the  brokers,  they  add,  "  the  underwriter  refufed  to 
"  fign  the  policy  without  fpecifying  what  port  fhe  was  to  call  at ;"  and  in 
others  of  their  papers,  fo  far  from  controverting  the  fatl;,  they  found  an 
argument  upon  it,  viz.  that  the  fufpenders  having  procured  the  word  Leith 
to  be  inferted  in  the  policy,  inftead  of  the  words,  as  iifual,  they  were  them- 
felves  the  caufe  why  the  order  of  infurance  was  not  complied  with  in  the 
terms  originally  given,  and  therefore  muft  be  anfwerable  for  it : — the 
infufficiency  of  which  argument  will  be  obvious  ; — ^the  fufpenders  admit  that 
they  were  fo  far  the  caufe  of  the  alteration,  that  they  refufed  to  fubfcribe  the 
policy  in  the  terms  originally  offered  ;  but  the  broker  and  they  having  agreed 
upon  other  terms,  where  can  the  doubt  be  that  thefe  laft  muft  be  the  rule  ? — 
Laftly,  it  was  urged,  that  the  argument  upon  this  head,  on  the  other  fide, 
goes  entirely  upon  a  mifapprehenfion  of  the  cafe,  as  if  the  fufpenders  were 
refponfible  for  the  conduft  of  the  brokers,  in  exceeding  their  powers,  or  in 
not  attending  fufficicntly  to  what  was  meant  by  their  employers :  this  the 
fufpenders  have  nothing  to  do  with :  all  that  they  know  of  the  matter  is,  that 
they  agreed  to  fign  a  policy  with  liberty  to  touch  at  Leith,  but  they  exprefsly 
refufed  to  fign  a  policy  with  an  indefinite  liberty  of  calling  at  places  as  xfual\ 
and  the  queftion  with  them  muft  be  regulated  by  the  policy  which  they 
fubfcribed,  not  by  a  policy  which  they  did  not  fubfcribe. — Will.  Wil/on  and  Co. 
v.  Alex.  Elliot  and  others. 

14.     The 


DEVIATION. 


^79 


14.  The  underwriters  (in  the  fore-mentioned  caufe)  conceiving  them- 
felves  aggrieved  by  the  interlocutors  of  the  judge-admiral  of  the  6th  of  January, 
14th  of  February,  and  7th  of  April  1775,  and  by  the  interlocutors  pronounced 
by  the  court  of  felTion  of  the  23d  of  January  and  7th  of  March  1776  (which 
confirmed  thofe  of  the  admiral)  appealed  to  the  hoicfe  of  lords,  who  reverfed 
the  fame,  the  25th  of  November  1776: — -fo  judgment  for  die  appellants, 
the  underwriters. 

15*  Ik  feveral  policies  of  infurance  ufed  in  places  abroad,  the  following 
words  are  inferted,  viz.  "  Thefaid  fhip  fliall  be  permitted  to  fail  forwards,  and 
backwards,  to  turn  and  wind  to  the  right,  left,  and  all  fides ;" — "  and  to  flop 
wherever  fhall  be  thought  proper  and  convenient,  whether  forced  thereto,  or, 
voluntarily,  going  into,  and  coming  out  of  any  port,  or  ports,  bays,  or  bars, 
delivering,  or  receiving  any  loading ;" — ftill,  however,  the  mafter  mufl  return 
to  his  courfe,  and  proceed  to  the  port  of  deftination  expreffed  in  the  policy. — • 
But  the  latitude  given  by  thofe  words  is  certainly  too  dangerous  ;  and  would 
in  England  occafion  many  frauds,  the  laws  not  having  hitherto  provided  /'as 
in  foreign  nations)  adequate  means  of  detefting  and  punifliing  them. 

16.  Re  M  A  R  K. — By  comparing  what  has  been  inferted  under  this  head,  as  the 
doftrine  in  England,  concerning  deviation,  with  the  laws  and  practice  refpefting 
it  in  fome  other  countries,  it  may  feem  fome^\•hat  hard  that,  here,  the  innocent 
fliippers  of  goods  fliould  entirely  lofe  all  benefit  whatfoever  from  their  infu- 
rances,  from  the  moment  the  mafter  of  the  (hip  goes  out  of  the  direti  courfe  of 
the  voyage  mentioned  in  tlie  policy  ;  although  they  were  not  confenting  to, 
nor  had  the  Icalf  cognizance  of,  fuch  deviation  ;  and  notwithftanding  neither 
the  mafter  or  owners  may  be  able,  in  cafe  of  a  lofs  thereby,  to  indemnify  the 
freighters,  even  for  a  finall  part  of  fuch  lofs  : — but  the  reafon  of  the  doftrine, 
is  very  plain  and  juft  ;  for  as  the  original  contraft  for  the  voyage  is  between 
the  freighters  and  the  mafters  and  owners  (the  infurers  being  unconnefted 
therein)  it  behoves  the  former  to  be  always  careful  as  to  the  charafters  and 
ability  of  the  latter,  to  anfwer  for  all  negligences  and  irregularities  : — and 
befides,  were  infurers  liable  for  loifes  and  damages  in  cafes  of  deviation 
from  the  voyage  defcribed  in  the  policy,  for  which  only  they  undertake  to 
indemnify,  it  would  be  a  perpetual  fource  of  collufion  and  fraud,  not  only 
between  owners  and  mafters,  but  alfo  between  them  and  freighters ;  and  ftiips 
would  be  frequently  direfted  to  make  trading  voyages  to,  or  call  at,  feveral 
different  places,  at  the  rifque  of  infurers,  whilft  they  were  infured  as  if  in- 
tended to  go  only  to  one  or  two  : — and  there  is  fometimes  juft  caufe  of 
fufpefting  this  to  be  drfgncd,  when  there  is  inferted  in  the  policy,  after  the 
printed  words,  "  to  touch  and  ftay  at  any  ports  or  places  whatfoever,"  the 
novel  claufe,  viz.  "  without  being  deemed  a  deviation ;"  which,  however, 
frequently  efcapes  the  attention  of  underwriters  :  notwithftanding  which  the 
affureds  ought  to  be  cautious  in  depending  on  the  efficacy  of  this  claufe  ; 
becaufe  in  cafe  of  any  unneceffary  deviation,  and  of  difference  of  opinion  and 
litigation  refpefting  it,  I  prefume  to  think  that  a  reafonable,  not  a  literal  con- 

Jlru^lion^ 


i8o  DISTRESS. 

JlruElion,  would  ftill  prevail : — for  "  paEla  nonfuntfervanda  quce  ad  dclinquen- 
dum  provocant ;" — leg.  5,  fF.  depaElis  do&,alibus. 

17.  See  Prelim.  Di/c.  41,  45,  46,  53.  Alteration,  Bottomry,  Broker,  Com- 
mencement, ConJlruElion,  Convoy,  Embargo,  Intendment,  Rifque,  Touching^ 
U/age,  Voyage,  Written  Claufe. 


DISCHARGE. 

See  Africa,   Commencement,   End,    Lighter,   Newfoundland,   Sailors  Wages, 

Unloading,    Voyage. 

DISCOUNT. 

See  Abatement,  Average. 
DISPUTE. 

1.   T  T  often  happens  that  for  want  of  carefully  examining  and  weighing  our 

-*-  own  concerns,  difputes  at  law  arife,  which  when  cleared  up  are  found 

not  to  have  been  worth  difputing  ;  and  when  regard  is  had  to  equity,  matters 

which  have  appearance  even  of  intricacy  are  eafily  decided. If  we  look 

back  to  the  fuits  at  law  which  have  been  carried  on  for  many  years  paft  about 
the  affairs  of  infurance,  and  could  at  the  fame  time  be  let  into  a  true  detail  of 
their  merits,  we  fiiould  find  that  (befides  fuch  as  have  originated  \n  fraudulent 
praftices)  many  of  them  have  arifen  from  the  parties  not  having  given  them- 
felves  the  trouble  to  explain  their  own  meaning,  nor  to  make  themfelves 
properly  acquainted  with  rht.  ]\x^  principles ,  and  cuftomary  methods  of  the 
tranfaclions  they  were  refpeftively  engaged  in  :  and  I  am  perfuaded  that  the 
mofl  judicious  lawyers  will  allow,  that  fuch  matters  may,  in  general,  be  much 
better  decided  by  experienced  merchants,  and  good  accomptants,  than  by 
perfons  even  of  the  greatefl  eminence  in  the  law. 

2.  See  Prelim.  Difc.  14  to  22,35,54,  57.  Amicable  Judicatory,  Arbitration, 
Average,  Broker,  Chainber  of  Affurancc,  Civil  Law,  Conful,  Court- Merchant, 
Court  of  Policies  of  Affurancc,  Infiircr,  Law  and  Lawyers. 

DISTRESS. 

1.   T  T  is  agreeed,    that  in  cafe  the  fubjecls   and  inhabitants  of  either  of  the 

-^  kings,  with  their  (hipping  (whether  public  and  of  war,  or  private  and 

of  m.erchants)  be  forced  through  ftrefs   of  weather,  purfuit  of  pirates  and 

enemies,  or  any  other  urgent  neceflity,  for  feeking  of  flielter   and  harbour, 

to 


DOCK.  181 

to  retreat  and  enter  into  any  of  the  rivers,  creeks,  bays,  havens,  roads,  ports, 
and  fliores,  belonging  to  the  other  in  America,  they  fhall  be  received  and 
treated  there  with  all  humanity  and  kindnefs,  and  enjoy  all  friendly  proteftion 
and  help  ;  and  it  fhall  be  lawful  for  them  to   refrefh  and  provide  theinfelves 
at  reafonable    and  ufual  rates,  with  viftuals   and  all    things  needful  for  the 
fuftenance    of  their  perfons,  or  reparation  of  their  fliips  and  conveniency  of 
their  voyage  ;  and  they  fhall  no  manner  of  way  be  detained  or  hindered  from 
returning  out  of  the  faid  ports  or  roads,  but  fhall  remove  and  depart  when 
and  whither  they  pleafe,  without  any  let  or  hinderance  ;  provided  always,  that 
they  do  not  break  bulk,  nor  carry  out  of  their  fhips  any  goods,  expofing  them 
to   fale,  nor  receive    any  merchandife  on  board,    or  employ  themfelves  in 
fifhing,  under  the  penalty  of  the  confifcation  of  fhips   and    goods  ;  and  it  is 
further  agreed,  that  whenfoever  the  fubjefts  of  either  king  fhall  be  forced  to 
enter  with  their  fhips  into  the  other's  ports,  as  is  above  mentioned,  they  fhall 
be  obliged  at  their  coming  in  to  hang  out  their  flag,  or  the  colours  of  their 
nation,  and  give  notice  of  their  coming  by  thrice  firing  a  cannon ;    and  if 
tliey  have  no  cannon,  by  firing  a  mufls.et  thrice  ;    which  if  they  fliall  omit  to 

do,   and  yet  fend  their  boat  on  fhore,  they  fliall  be  liable  to  confifcation. 

If  any  fhips  belonging  to  either  of  the  kings,  their  people  and  fubjefts,  fliall 
within  the  coafts  or  dominions  of  the  other  flick  upon  the  fands,  or  be 
wrecked  (which  God  forbid)  or  fuffer  any  damage,  all  friendly  affiflance  and 
relief  fliall  be  giv^en  to  the  perfons  fhipwrecked,  or  fuch  as  fhall  be  in  danger 
thereof;  and  letters  of  fafe  conduft  fliall  likewife  be  given  to  them  for  their 
free  and  quiet  pafTage  from  thence,    and  the  return  of  every  one  to  his  own 

country. When  it  fliall  happen,   that  the  fliips  of  either  party   (as  above 

mentioned)  through  danger  of  the  fea,  or  other  urgent  caufe,  be  driven  into 
the  ports  of  the  other,  if  they  be  three  or  four  together,  and  may  give  juft 
ground  of  fufpicion,  they  fhall  immediately  upon  their  arrival  acquaint  the 
governor  or  chief  magiftrate  of  the  place  with  the  caufe  of  their  coming ;  and 
fhall  flay  no  longer  than  the  faid  governor  or  chief  magillrate  fhall  allow,  and 
fhall  be  requifite  for  fupplying  themfelves  with  provifion  and  repairing  their 
fhips. — Treaty  with  Franc?,  1686. 

2.     See  Colony,  Salvage,  Wreck. 


DOCK. 

CA  S  E. — This  was  an  a6lion  by  a  fhipwright  for  work  and  labour 
done,  and  materials  provided  in  repairing  the  defendant's  fhip  :  and 
tne  queftion  was,  "  Whether  the  plaintiff  was  entitled  to  recover,  under  the 
following  circumftances  ?" — The  fliip  being  damaged,  was  obliged  to  put 
back,  in  order  to  be  repaired  in  dock ;  and  was  to  have  gone  out  of  the  dock 
on  Sunday  :  in  the  interim,  viz.  on  the  day  before,  and  when  only  three  hours 
work  was  wanting  to  complete  the  repair,  a  Jire  happened  at  an  adjacent 
brewhoufe,  and  was  communicated   to  the  dock :  and  the  fhip  was  burnt : — 

Y  y  it 


i82  D      O      C      U      M      E      N      r. 

it  was  the   fliipwright's  own  dock ;   and  the  owner  of  the  fliip  had  agreed  to 

pay  him  q].  for  the  zife  of  it. For  the  plaintiff,  it  was  infilled  that  he  was 

not  anfwerable  for  this  event,  which  happened  without  his  negleft  or  default ; 
unlefs  there  had  been  {ome/jbecial  undertaking  : — where  it  is  the  aft  of  God, 
the  perfon  who  has  the  cullody  of  another  man's  property,  is  excufed  :  the 
plaintiff  here  was  a  general  bailee  only  ;  therefore  not  chargeable,  i  Inji.  Sg. 
he  was  obliged  to  keep  it  as  he  would  keep  his  own :  the  men  were  on  board 
of  this  fhip  (though  that  makes  no  difference)  :  the  plaintiff  therefore  was 
not  anfwerable  for  the  lofs  of  the  fhip  ;  and  if  the  plaintiff  be  not  liable  for 
the  lofs  of  the  fliip,  he  is  entitled  to  be  paid  for  his  work  and  materials ;  the 
materials  muff  be  confideredas  havingbeen  delivered :  the  defendant  might  have 
fold  this  fhip  while  it  was  in  the  dock,  and  thefe  materials  would  have  been 
part  of  it ;    the  fixing  them  to  the  fliip  was  a  delivery  of  them  :    the  adjunft 

muft  go  with  the    fubjeft. Contra,  for  the  defendant:    the   queflion  is, 

"  Whether  the  plaintiff  is  entitled  to  be  paid  by  the  defendant  for  that  work  and 
labour  from  which  the  defendant  neither  did  nor  could  reap  any  advantage?" — • 
The  plaintiff"  was  obHged  to  redeliver  the  fliip  fafe,  having  undertaken  to 
repair  it. — Reply  :  as  to  the  defendant's  not  having  had  the  benefit  of  the 
repair,  there  is  no  reafon  M'hy  the  fhipwright  fhould  not  be  paid  for  his  work 
and   labour  and  materials :    JDigeJi,    tit.    de  negotiis  gcjlis.     The    defendant 

might  have  infured  his  fhip. Lord  Mansfield  :    this  is  a  defperate  cafe  for 

the  defendant  (though  compafTionate) :  I  doubt  it  is  very  difficult  for  him  to 
maintain  his  point :  befides,  it  is  ftated,  "  that  he  paid  5I,  for  the  life  of  the 
dock." — Mr.  Juftice  Wilmot :    fo  that  it  is  like    a  horfe,  that  a  farrier  waS 

curing,  being  burnt  in  the  owner's  own  ftable. A  rule  was  made,  that  the 

poff:ea  be  delivered  to  the  plaintiff. — 3  Burr.  1592.  Mich.  5  Geo.  3.— 
Minctone  v.  Athawes. 

2.     See  Accident,  Fire,  Lofs,  Negligence,  Repair. 


DOCUMENT. 

WNE  RS,  freighters,  and  maffers  of  fhips,  ought  always  to  be  careful 
that  all  the  papers  and  documents  requifite  to  afcertain  on  any 
emeroency  the  true  and  legal  ownerfliip,  and  regular  clearances  of  the  fliip, 
and  cargo,  be  on  board  of  her ;  to  prevent  feizure,  detention,  and  the 
confequent  delays,  damages,  and  charges,  to  which  otherwife  they  may  be 
liable  ;  and  the  danger  of  vacating  the  infurance  by  navigating  with  illegal, 
irregular,  or  deJcBive  papers. 

•  2.  Protefls,  bills  of  lading,  invoices,  certificates,  affidavits,  letters,  procu- 
rations, &c.  are  hot  of  themfelves  fufficient  legal  evidence  where  there  is  rea- 
fon to  fufpeft  coUufion  or  fraud  ;  but,  if  infilled  upon,  their  contents  mufl  be 
authenticated  by /rex?/"  of  fafts,  on  oath,  in  court. 

.^.     See 


DOUBLE-INSURANCE.  1S3 

3.  See  Prelim.  Di/c.  12,  33,  37,  79.  Broker,  Claim,  Concealment,  Court- 
Merchant,  Date,  Evidence,  Law  of  Nations,  Neutral  Ship  or  Properly,  Prize. 
Proof,  Property. 


DO        L        L        A        R. 

1.     \S  bottomry-bills  from  Curacoa  and  St.  Euftatia  commonly  exprefs 
'    -^^  to  pay,   within  days   after   their  arrival  at  Amflerdam,  48 

Rivers  current  money  for  each  dollar  received  there ;  it  may  not  be  improper 
to  inform  our  readers  of  the  juft  value  of  the  nominal  dollar  of  thofe  iflands 
at  London  : — a  thoufand  heavy  Spanifh  dollars  pafs  in  thofe  iflands  for  1,25a 
dollars  ;  and  when  invoices  of  goods  coming  from  thence  are  exprefled  in 
dollars,  to  reduce  them  to  Spanidi  dollars,  25  per  cent,  mufl  be  deducted 
from  the  former:  now  10,000  effeftive  Spanifli  pieces  of  eight,  worth  12,500 
pieces  at  St.  Euftatia,  being  fent  by  Governor  Heiliger  to  England  in  1753, 
produced,  after  a  deduction  of  two  per  cent,  freight,  and  one  per  cent. 
commifiTion,  2,299!.  neat  at  London  :  the  nominal  dollar  at  St.  Euftatia  is 
therefore  equal  to  3s.  8d.  fterling,  premium  included  :  whence  it  appears, 
that  when  48  ftivers  are  required  at  Arafterdam  for  a  dollar,  fome  profit  on 
lending  the  money  on  bottomry  is  included ;  which,  in  our  opinion,  cannot 
be  recovered  from  the  infurers,  unlefs  they  agreed  to  the  valuation  of  the 
dollar  at  48  ftivers,  or  4y*y  ftiillings  fterling,  in  the  policy  : — but  to  admit  a 
valuation  above  3s.  8d.  to  4s.  premium  included,  is  dangerous  for  the 
infurers. — 1  Mag.  21. 

2.     See  Bottomry,  Valuation. 


DOUBLE-INSURANCE. 

1.  /^ASE. — This  was  a  point  referved  at  nifi  prius,  before  Lord  Mansfield 
V-''  at  Guildhall :  the  queftion,  ftrongly  litigated  thei-e,  was,  "  Whether 
the  plaintiff^  ought  to  recover  his  whole  lofs,  or  only  half;"  it  being  obje6led, 
"  that  there  was  a  double  infurance  ?" — A  verdi6l  was  found  for  the  whole, 
fubjecl  to  the  opinion  of  the  court ;  and  if  the  court  fliould  think  upon  his 
lordftiip's  report,   "  that  the  plaintiff,  by  law,  ought  to  recover  for  half  his 

lofs  only,"  then  the  verdift  to  be  entered  up  as  for  half: it  was  argued, 

yefterday,  by  feveral    counfel  on  each  fide ;    and  this  day  Lord  Mansfield 

delivered  the  opinion  of  the  court. He  began  with  ftating  the  fafts  as  they 

appeared  to  him  at  the  trial ;    which  were  thefe : — Mr.  Meybohm,  of  St. 
Peterfburgh,  had  dealings  with  Mr.  Amyand  and  company,  of  London,  who 

often  fent  fliips  from  London  to  Mr.  Meybohm,  at    St.  Peterfburgh : 

Meybohm,  as  appeared  by  the  evidence,  was  indebted,  on  the  balance  of  their 

accounts,  to  Amyand  and  company : Amyand  and  company  fent  a  fliip, 

called  the  Galloway,  Stephen  Baker,  mafter,  to  Mr.  Meybohm,  at  St.  Peterf- 
burgh, 


i84  DOUBLE-INSURANCE. 

burgh,  to  fetch  certain  goods : Meybohm  fent  the  goods,  and  promifed  to 

fend  the  bill  of  lading  by  the  next  poll,  but  never  did  : afterwards,  viz.  in 

Auguft  1756,  Amyand  and  company  got  a  policy  of  infurance  from  private 
infurers  for  1,1  ool.  on  the  (hip,  tackle,  and  goods,  at  and  from  London  to 
St.  Peterfburgh ;  and  at  and  from  thence  back  again  to  London ;  which 
policy  was  figned  by  fevcral  private  underwriters,  quite  different  perfons  from 
the  prefent  defendants  ;  and  of  this  fum  of  i,iool.  thus  underwritten,  500I. 
was  declared  to  be  on  eleven  fixteenih  parts  of  the  fliip,   and  the  remaining 

600I.  to  be  on  o-oods : between  the  26th  of  Augufl  and  28th  of  September 

1756   (both  included)  Mr.  Amyand  infured   800I.   more  with  other  private 
infurers  ;  and  this  latter  infurance  was  upon  goods  only,  and  was  only  at  and 

from  St.  Peterfburgh  to  London : on  the  28th,  29th,  and  30th  of  Oftober 

1756,  Mr.  Amyand  infured  gool.  more,  with  other  private  infurers;    which 

lafl  infurance  was  on  goods  only,  at  and  from  the  Sound  to  London : fo 

that  the  whole  fum  thus  infured  by  Amyand  and  company,  was  2800I. ;  of 
which  2,8ool.  the  fum  of  2,3001.  was  on  goods,  the  remaining  500I.  was  on  the 

fl-iip. Several  letters  being  given  in  evidence,  it  appeared  that   Meybohm 

wrote  from  St.  Peterfburgh,  on  the  7th  of  September  1756  (the  date  of  his 
firft  letter  on  this  fubjecl)  to  Amyand  and  company,  and  mentioned  Avhat 
goods  he  fliould  fend  to  them,  referring  to  the  invoice  for  the  particulars  ; 
and  direfted  them  to  get  infurance  thereon,  and  to  place  the  goods  and  the 
infurance  to  a  particular  account  which  he  named  in  his  letter  ;  in  which  he 

alfo  fpecified  fome  iron,  which  was  for  Mr.  Amyand's  own  account : this 

letter  Mr.  Amyand  afterwards  received  (probably  about  the  27th  of  Oftober) 
and  in  confequence  of  it  made  the  infurance  accordingly  upon  the  28th,  29th, 
and  30th  of  the  fame   October,    as  before  mentioned : — Meybohm  having 
fhipped  the  goods,  indorfed  the  bills  of  lading  to  one  Mr.  John  Tamez,  in 
Mofcow   (the  plaintiff,  in   efleft,  in  the   prefent  aftion)  who,  on  the  7ih  of 
Oftober  1756,  wrote  to  his  correfpondent  Mr.  Uhthoff,  here  in  London,  "  to 
infure  thefe  goods  ;"  in  this  letter  he  defircs  Mr.  Uhthoff  to  infure  the  whole, 
"  that  he,  Tamez,  might  be  fafe  in  all  events ;    for  he  fufpefted  that  thefe 
goods  were  intended  to  be  configned  by  Meybohm  to  fomebody  elfe,  and 
perhaps  might  be  infured  by  fome  other  perfons ;"    and  he  fays,  they  were 
transferred  to  him  in   confideration   of  his  being  in  advance   to  Meybohm 
more  than  their  amount. — This  letter  from  Mr.  Tamez,  with  thefe  direftions 
"  to  infure,"  was  received  by  Mr.  Uhthoff,  on  the  15th  of  November  1756: 
Mr.    Uhthoff  accordingly   applied    to    the   defendants,    the    London-Affu- 
rance  company,  and  difclofed  to  them  at  the  fame  time,  all  thefe  particulars  ; 
and  they  upon  the  16th  of  November  175S,  after  being  thus  apprifed,  "  that 
there  might  be  another  infurance,"  made  the  infurance  now  in  queftion  for 
2,3161.  on  the  goods,  at  and  from  the  Sound  to  London:  the  goods  were 
loft  in  the  voyage. — Mr.  Uhthoff 's  infurance  was  made  by  the  plaintifls  Godin, 
Guion,  and  Comp.  who  are  infurance-brokers  ;    and  they  declare  that  this  infu- 
rance (which  is  exprefled  to  be  made  by  them,  "  as  well  in  their  own  names,  as 
for  and  in  the  name  and  names  of  all  and   every  other  perfon  or  perfons  to 
whom  the  fame  doth,  may,  or  fhall  appertain  in  part  or  in  all ")  was  made  by 

order 


D  O  U  B  L  E  -  I  N  S  U  R  A  N  C  E.  185 

order  of  Henry  UhthofF,  Efq :  this  declaration  is  indorfed  iij^on  the  poHcy, 
and  is  dated  the  18th  of  November  1756.— There  is  no  doubt  as  to  the  value 
of  the  goods,  or  as  to  the  lofs  of  them  ;  and  it  is  admitted  by  the  defendants, 
"  that  the  plaintiff  ought  to  recover  half  the  lofs  from  them  :"  but  they  fay, 
they  ought  to  pay  orily  half,  not  the  whole  of  the  lofs  ;  fo  that  the  only 
queftion  is, — "  Whether  the  plaintiff  is  entitled  upon  the  circumflances  of  this 
cafe,  and  upon  the  fafts  I  have  been  Rating,  to  recover  the  xohole  lofs  from 
the  prefent  defendants ;  or  only  the  half  of  his  lofs  from  them,  and  the 
remainder  from  the  underwriters  of  Mr.  Amyand's  policy  ?  '— The  verdift  is 
found  for  the  plaintiff  for  the  whole  ;   but  it  is  agreed  to  be  fubjeft  to  the 

opinion  of  this  court,   upon  the  quellion  I  have  juft  mentioned. Firft,  to 

confider  it  as  between  the  infurer  and  infured  ;  as  between  them,  and  upon 
the  foot  of  commutative  juftice  merely,  there  is  no  colour  why  the  infurers 
fhould  not  pay  the  infured  the  whole  ;  for  they  have  received  a  premium  for 
the  whole  rifque.  Before  the  introdutlion  of  wagering  policies,  it  was,  upon 
principles  of  convenience,  very  wifely  eftabliriied,  "  that  a  man  fhould  not 
recover  more  than  he  had  loft  ;  infurance  was  confidered  as  an  indemnity  only 
in  cafe  of  a  lofs  ;  and  therefore  the  fatisfaftion  ought  not  to  exceed  the  lofs : 
this  rule  M'as  calculated  to  prevent  fraud,  left  the  temptation  of  gain  fiiould 
occafion  unfair  and  wilful  lolfes  :" — if  the  infured  is  to  receive  but  one  fatis- 
faftion,  natural  juftice  fays  that  the  feveral  infurers  fhall  all  of  them  contribute 
prorata,  to  fatisfy  that  lofs  againft  which  they  have  all  infured:  no  particular 
cafes  are  to  be  found  upon  this  head,  or  at  leaft  none  have  been  cited  by  the  counfel 
on  either  fide : — "  where  a  man  makes  a  double  infurance  of  they^m^  thing,  in 
fuch  a  manner  that  he  can  clearly  recover,  againft  feveral  infurers  in  diJlinB,  poli- 
cies, a  double  fatisfaftion,  the  law  certainly  fays  that  he  ought  not  to  recover 
doubly  for  xhzfame  lofs,  but  be  content  with  one  fingle  fatisfa6tion  for  it:"  and  if 
\\\<ifa')ne  man  really,  and  for  his  own  proper  account,  infures  the  fame  goods 
doubly,  though  both  infurances  be  not  made  in  his  own  name,  but  one  or 
both  of  them  in  the  name  of  another  perfon,  yet  that  is  juft  the  fame  thing, 
for  the  fame  perfon  is  to  have  the  benefit  of  both  policies  ;  and  if  the  whole 
fliould  be  recovered  from  one,  he  ought  to  ftand  in  the  place  of  the  infured, 
to    receive    contribution  from  the  other,   who  was  equally   liable  to  pay  the 

whole. The  aft  of  19  Geo.  2.   c.  37.  (made  to  regulate  infurances,  and  for 

preventing  of  wagering  policies)  exprefsly  prohibits  the  re-aJJ'urivg  (after 
having  already  infured  the  fame  thing) ;  unlefs  the  former  afllirer  fliall  be 
infolvent,  or  become  a  bankrupt,  or  die  :  and  it  provides  that  even  in  thofe 
cafes,  it  fliall  be  expreffed  in  the  policy  "  to  be  a  re-affurance  :"  fo  that,  here,  if 
Mr.  Tamez  had  him/elf  made  a.Jecond  affurance  upon  the  fame  goods,  and  was 
to  have  had  the  benefit  of  both  infurances  himfelf,  it  had  been  within  this 
aft  : — 'but  if  Tamez  was  not  to  have  the  benefit  of  both  policies  in  ail  events, 
then  it  can  never  be  confidered  as  a  double  policy. — It  has  been  faid, 
"  that  the  indorfement  of  the  bills  of  lading  transferred  Meybohm's  intereft 
in  all  policies  by  which  the  cargo  aftigned  was  infured ;  and  therefore  Tamez 
has  a  right  to  Mr.  Amyand's  policy,  and  that  Tamez  being  the  affignee  of 
Meybohm,  is  the  cejiui  qui  trujt  of  it,  and  may  recover  the  money  infured  ;" 

Z  z  and 


i86  DOUBLE-INSURANCE. 

and  even,  '•'that  he  may  bring  trover,  or  detinue,  for  the  very  policy  itfelf;" 
and  it  is  urged  from  hence,  that    he  either  will  or  may  have  a  double  fatis- 
faftion  for  the  fame  lofs : — but,  allowing  "  that  by  the  indorfement  of  the 
bills  of  lading,  and  afhgning  the  cargo  to  Tamez,  he  {lands  in  the  place  of 
Meybohm    in   refpett   of  his    infurances ;"   yet  Mr.  Amyand   has  an  intereft 
of  his  own,   and  had   aftually  infured   the    (hip   and  goods,    and   the  fum 
of   1,9001.    (upon   both    together)    prior    to    any    directions   or   intimation 
received   from    Mr.   Meybohm,  '•  to  infure  for  him."     Various  people  may 
infure  various  interefls   on  the   fame  bottom  ;   as  one  perfon  for  goods,  ano- 
ther for   bottomree,   &c.  and  here   Mr.  Amyand  had  an  intcrejl  of  his  own 
dijlinU  from  the  intereft  of  Meybohm ;    he  had  a  lien  upon  thefe  veiy  goods 
as  ^factor,  to  whom  a  balance  was  due  ;    and  he  had  the  fole  intereft  in  the 
fhip,  which  was  a  part  of  the  things  infured  by  him. — It  is  far  from  appearing 
"  that  even  his    laft  infurance  (in    Oftober)  was   made  on  the  account  of 
Meybohm,  or  as  agent  for  him  :"  fo  far  from  it,  Mr.  Aymand  infifts  upon  it 
for  his  own   benefit  (as  he    exprefsly  declared  at  the  trial)  and  abfolutely 
refufes  to  give  it  up,   or  to  fuffer  his  name  to  be  ufed  by  the  plaintiff,   though 
he  was  a  witnefs  for  the  defendants,  and  was  produced  by  them,  and  inclined 
to  ferve  them ;    fo  that   the    foundation    of  this   argument,    urged  by   the 
defendant's  counfel,  fails  them;   and  there  is,  in  reality,  nothing  to  fupport  it. 
But  even   fuppofing  "  that  Mr.  Amyand  had  made  his   infurance,  not  upon 
his  own  account,   but  as  agent  or  faElor   for  Mr.  Meybohm ;  and  upon  the 
account  of  Meybohm  ;"    yet,  even  then,    Tamez   can   never  come    againft 
Amyand's  underwriters,  or  come  at  Amyand's  policy,  to  his  own  ufe  ;  for  Mr. 
Amyand,  the  faftor  for  Meybohm,  has  poffeflion  of  the  policy,   and  appears 
to  have  been  a  creditor  of  Meybohm's  upon  the  balance  of  accounts  between 
them  at  the  time  when  they  made  the  infurance  :    and  I  take  it  to  be  now  a 
fettled  point,  "  that  a  fador,  to  whom  a  balance  is  due,   has  a  lien  upon  all 
goods  of  his  principal,  fo  long  as  they  remain  in  his  pofteftion."' — Krufcr  &  al. 
V.  Wilcox  &  al.  was  a  cafe  in  chancery  upon  this  head  ;    it  came  on  firft  before 
Sir  John  Strange,  then  mafter  of  the  rolls,  who   decreed  an  account,   and 
direfted  allowances  to  be  made  for  what  the  fa6lor  had  expended  on  account 
of  the  fliip  or  cargo,  and  referved  all  further  direftions  till  after  the  mafter's 
report :  it  came  on  again,   afterwards,  for  further  direftions,  after  the  mafter's 
report,  before  the  lord  chancellor,  who  Avas  attended  by  four  eminent  mer- 
chants, who  were  interrogated  by  him  publickly  ;  after  which,  he  took  time 
to  confider  of  it,  and  on  the  iftof  February  1755,  decreed,  "  that  the  faftor 
has  a  lien  on  goods  configned  to  him,  not  only  for  incident  charges,  but  as 
an  item  of  mutual  account  for  the  general  balance  due  to  him,    fo  long  as  he 
retains    the   poffeftion  ;   but  if  he  parts  with    the  poftelFion  of  the    goods,  he 
parts  with  his  lien  ;    becaufe  it  cannot  then  be  retained  as  an   item   for  the 
general  account." — 'And  there  was  another  cafe  in  tlie  fame  court,  of  Gardiner 
V.  Coleman,  a  few  months  after ;   in  which  the  former  cafe  determined,   as  I 
have  mentioned,  was   confidered  as  a  point  fettled ;  and  this  latter  cafe  of 
Gardiner  v.  Coleman,  was  decreed  agreeable  to  it ;  fo  that  Mr.  Amyand,  even 
confidered  as  a  fadoi"  or  agent  to  Meybohm,  and  as  making  the   infurance 

upon 


DOUBLE-INSURANCE.  i8; 

(ipoti  Meybohm's  account,    is  yet  entitled  to  retain  the  policy,  Meybohni 
being  indebted  to  him  upon  the  balance  of  accounts  between  them  ;  and  he 
has  a  lien  upon  the  policy,  whilft  it  continues  in  his    poircffion  ;   therefore, 
even  in  this  view  of  the  cafe,  Mr.  Tamez  mufl  firft  have  paid  to  Mr.  Amyand 
the  balance  of  his  (Amyand"s)  account,  before   he  could  have  gotten  that 
policy  out  of  Mr.  Amyand's  hands  ;   and  confequently,  Mr.  Tamez  was  very 
far  from  being  entitled  to  the  benefit  of  it,  as  a  cejliu  qui  tnijl,  abfolutcly  and 
entirely.— But  if  the  queftion,  "  Whether  Tamez  could  take  benefit  of  Mr. 
Amyand's  policy?"   were  doubtful  ;  yet,  here  Tamez  infured  the  goods  with 
the  defendants,  exprefsly  under  the  declaration  of  his  fufpicion,  "  that  there 
might  have  been  a  former  confignation,  and  fomeyorTOerinfu ranee  made  upon 
the  goods  by  fome  other  perfon ;"  but  he  defired  to  infure  the  xohole  for  his 
own  fecurity ;    and  to  this  the  defendants   agreed,  and  took  the  whole  pre- 
mium.    Mr.   Amyand  infilled  upon  his  right  to  the  whole  benefit  of  his  own 
policy,  when  he   was    examined    as   a  witnefs,  and   is  nov/   litigating  it  in 
chancery. — It  would  neither  be  juft  or  reafonable,  that  Tamez  fhould  only 
recover  half  of  his   lofs  from  the  defendants,   and  be  turned  round   for   the 
other  half,   to  the  uncertain  event  of  a  long  and  c.xpcnfive  litigation  ;    I  do  not 
believe  there  ever  will  or  can  be  any  recovery  by  Tamez,  or  thofe  who  ftand 
in  his  place,  againft  Amyand's  underwriters  : — however,  if  thofe  underwriters 
are  liable  to  contribute  at  all,  the  contribution  ought  to  be  amongfl;  the  feveral 
infurers  themfelves  ;  but  Tamez,   the  infured,  has  a  right  to  recover  his  xjchole 
lofs  from  the  defendants  upon  the  policy  now  in  queftion,  by  which  they  are 
bound  to  pay  the  whole  ;  for  though  here  be  txoo  infurances,  yet  it  is  not  a 
double  infurance  ;    to  call  it  fo  is  only  confounding  terms  : — if  Tamd'z  could 
recover  againft  both  fets  of  infurers,  yet  lie  certainly  could  not  recover  a "-ainll: 
the  underwriters  of  Amyand's   policy,  without  fome  cxpence ;  nor  without 
alfo  firfl  paying  and  reimburfing  to  Mr.  Amyand  the  premium  he  paid,  and 
alfo  his  charges.     This  is  by  no  means  within  the  idea  of  a  double  infurance. 
Two  perfons  may  infure  two  different  interefls,   each  to  the  whole  value  ;    as 
the  mafter  for  wages,  the  owner  for  freight,  &c.  :    but  "  a  double  infurance  is 
where    iheyinne  man  is  to  receive  ihejame  furas  inflead  of  one,  or  the  fame 
fum  twice  over,  for  the  fame  lofs,  by  reafon  of  his  having  made  two  infurances 

upon    the  Jame  goods,    or  the    fame    fhip." Mr.  Tamez  is  entitled  to 

receive  the  whole  from  the  defendants  upon  their  policy,  whatever  fhall 
become  of  Mr.  Amyand's  policy  ;  and  they  will  have  a  right,  in  cafe  he  can 
claim  any  thing  under  Mr.  Amyand's  policy,  to  fland  in  his  place,  for  a 
contribution  to  be  paid  by  the  other  underwriters  to  them  ;  but  ffill  they  are 
certainly  obliged  to  pay  the  whole  to  him  : — therefore,  upon  thefe  grounds 
and  principles,  in  every  light  in  which  the  cafe  can  be  put,  we  are  all  of  us 
clearly  of  opinion,  that  the  verdift  is  right,  as  it  now  Hands  for  the  xehole ;  and 
that  the  poflea  be  delivered  to  the  plaintiff. — Rule  accordingly. — i  Burr,  490. 
Thurfday,  February  9th,  1758. — Godin&al.v.  The London-AJJurance Company. 

2.     In  cafe  any  perfon  make  affurance  upon  his  goods,  fhip,  or  merchandlfe, 
in   different  places,  without   giving  due  notice,  but  knowingly  and  wittingly 

concealing 


i88  D  O,  U  B  L  £  -  I  N  S  U  R  A  N  C  E. 

concealing  the  fame,  in  order  by  that  means  to  recover  double,  treble,  or 
more,  the  cofl  and  value  of  his  fliip,  goods  or  merchandife,  contrary  to 
what  is  permitted  by  this  ordinance,  or  make  more  affurance  upon  his  fliip, 
goods  or  merchandife,  than  is  allowed  by  the  fame,  then  he  fliall  not  be 
entitled  to  demand  or  pretend  to  the  payment  of  fuch  aflurance,  from  the 
afl'urers,  or  any  of  them,  but  the  fame  fhall  be  confifcated,  one  third  part  to 
the  benefit  of  the  poor,  and  the  other  two  thirds  to  the  ofhcer  and  informer 
refpeftively,  with  arbitrary  corre6lion,  referving  however  one  half  per  cent, 
which  the  affurer  is  to  deduft  out  of  it  according  to  ancient  cuflom,  if  he  was 
ignorant  of  it,  otherwife  not. — Ordin.  of  Middlcb. 

3.  If  there  fliouldbe  feveral  policies  made  without  a  fraudulent  intention, 
and  the  Jirjl  policy  amount  to  the  value  of  the  eflPecls  laden,  it  (hall  alone 
hold  good  :    the  other  infurers  fhall  withdraw  their  infurance,  and  return  the 

premium,    keeping    half  per    cent. In  cafe  the  firit  policy   fhould    not 

contain  the  amount  of  the  effefts  laden,  the  infurers  on  the  Jecond  fliall  be 
anfwerable  for  xh^/urpLiis :  if  there  be  effefts  laden  to  the  amount  of  all  the 
infurance  made,  then,  in  cafe  of  lofs  of  a  part,  it  fliall  be  paid  by  all  the 
infurers,    fo  much  per  cent,  on  what  they  have  underwrote. — Ordiii.  0/ France, 

4.  If  It  happens  that  the Jhme  fliip  or  goods  are  infured  at  Izvo  or  more 
places,  and  it  can  be  proved  to  have  been  done  without  any  fraud  in  the 
infured,  and  that  it  proceeded  only  from  his  not  having  timely  notice  of  the 
infurance  taken  up  by  his  agent  for  another  place,  that  policy  alone  fliall 
fl:and  good  which  is  of  the  oldc/l  date,  and  was  Jir/l  figned,  whether  the 
premium  contrafted  for  be  higher  or  lower  than  that  of  the  laft  policy  :  withal 
the  infured  may  demand  back  the  premium  paid  on  account  of  the  laft  policy, 
allowing  a  deduflion  of  one  half  per  cent. :  but  in  cafe  what  is  fpecified  in 
the  oldeft  policy  does  not  amount  to  the  full  value  of  the  goods  on  which 
fuch  infurance  was  made,  or  fo  much  as  by  this  ordinance  is  allowed  to  be 
infured  on  them,  the  laft  policy  fliall  then  be  of  force,  but  only  for  fo  much 
as  is  not  fpecified  in  the  hrft,  and  for  the  remaining  value  the  infurance- 
premium  fliall  be  returned  upon  demand,  with  a  deduftion  of  one  half  per 
cent. — Ordin.  oj  Stockh. 

5.  A  DOUBLE  infurance  upon  one  and  xht  fame  thing  may  not  be  made 
in  this  town,  nor  out  of  it,  under  penalty  of  it's  being  void :  but  if  it  (hall 
happen  that  two  or  more  concerned  in  the  fame  thing,  without  having 
knowledge  or  notice  the  one  of  the  other,  every  one  for  himfelf  makes  the 
faid  infurance,  it  fhall  remain  valid  to  him  that  can  prove  making  it  firfl ; 
in  which  cafe,  to  annul  the  fecond,  or  laft  (as  ought  to  be  done)  it  is  ordained, 
that  the  affured  do  pun6lually  repair  to  make  it  known  to  the  affurer,  with  a 
legal  inftrument  that  certifies  it,  in  the  term  of  thirty  days,  reckoned  from  the 
date  of  tiie  laft  policy,  provided  the  affured  has  not,  before  this  neceffary 
diligence,  any  advice  of  the  fliip's  defliny ;  and  that  in  this  manner  fuch 
fecond,   or   later   infurances   remain   null,   with  their   policies ;   the   affurer 

returning 


i 


DUTIES.  189 

returning  to  the  afTured  the  premium  that  he  (hall  have  received  from  him,  by 
reafon  of  the  faid  ignorance  of  the  firfl  infurance,  with  the  abatement  and 
difcount  of  half  per  cent,  which  he  may  retain,  and  keep,  for  having  figned 
the  poHcy  : — but  if  the  fliip  fhall  have  happily  ari'ived  before  faid  advice,  it 
fliall  be  judged  that  the  laft  allurer,  or  alTurers  have  gained  their  premiums, 
and  ought  not  to  reftore  them  :  and  on  the  contrary,  if  the  fhip,  and  cargo, 
or  what  of  them  ihall  be  infured,  fhall  be  totally,  or  in  part  lojt,  and  this 
appears  to  the  laft  affurers  before  they  were  acquainted  with  the  faid  firft, 
and  preferred  infurance  ;  in  this  cafe,  both  the  firft  and  laft  {^dW proportionably 
make  good  all  the  damages  or  lofs  of  what  is  infured ;  and  if  fome  of  them 
fliall  at  that  time  be  found  to  have  failed,  the  reft  fliall  fupply  what  fliall  be 
wanting,  in  proportion  to  what  they  have  infured,  having  their  redrefs  for 
what  is  fo  fupplied  againft  the  faid  bankrupts. — Ordin.  of  Bilb. 

6.  REMARK.^The  doclrine  eftabliflied  by  the  ordinances  which  are  here 
quoted,  is  that  of  Stypmannus  ad  jus  marit.  par.  4.  c.  7.  n.  508 ; — of 
Kuricke  diatriba  de  ajfec.  fol.  834,  n.  5; — oi  Loccenius  de  jure  marit.  lib.  2. 
c.  5.  n.  8; — oi  Stracca  de  ajjcc.  gl.  3.  n.  3.  and  feq.  and  gl.  6.  n.  9. — and  of 
the  civilians  in  general. 

7.  See  Bottomry,  Declaration,  Factor,  Inter ejl^  Order,  Prior- InfurancCi 
Profit,  Regulation,  Rcin/urance,  Trujiee. 


DRAWBACK. 

See  Abatement,  Average,  Inter  eft,  Lofs. 

DROIT      OF      ADMIRALTY. 

See  Prelim.   Difc.   81*    Admiralty  and  Admiralty-Court,  Prize, 


..A 


DUTIES. 

N  ample  allowance  in  the  duties  is  always  made  on  damaged  goods. 
2.     See  Abatement,  Average,  Damage,  Hemp,  Lofs^  Prohibited  Goods. 


3  A  EAST- 


E. 


lEAST-lNDIA,    AND  EAST-INDIA   COMPANY. 


iUl 


J.  "Y)  Y  Stat.  7  Geo.  i.  c.  21.  f.  2. — All  contrafts  made  by  any  of  his  majefly's 
•A3  fubjefts,  or  in  truft  for  them,  on  the  loan  of  monies  by  way  of 
bottomry  on  any  (hip  in  the  fervice  of  foreigners  and  bound  to  the  Eaft-Indies, 
&c.  and  all  contrafts  for  fupplying  any  fuch  fhip  with  goods  orprovifions,  and 
all  copartnerfhips  relating  to  any  fuch  voyage,  and  agreements  for  the  wages  of 

peribn*  ferving  on  board  any  fuch  fliip,  fhall  be  void. S.  g.  No  commodity 

of  the  produft  or  manufafture  of  the  Eaft-Indies  fhall  be  imported  into  Ireland, 
the  iflands  of  Jerfey,  Guernfey,  Alderney,  Sark,  or  Man,  or  to  any  of  the 
plantations  in  Africa  or  America,  belonging  to  the  crown  of  Great  Britain, 
but  fuch  only  as  be  fhipped  in  Great-Britain  in  fhips  navigated  according  to 
law,  on  penalty  of  forfeiting  all  fuch  goods^  or  the  value  thereof,  together 
with  the  finps,  &c. 

2.     See  Bargain,  Bottomry,  Company,  Eafl-India  Ships,  Prize. 


EAST-INDIA       SHIPS. 

X.  r-r\  Yi  E  largeft  merchant  fhips  are  thofe  employed  by  the  different 
J-  European  companies  of  merchants  who  trade  to  the  Eaft-Indies  : 
they  are  in  general  fomewhat  larger  than  our  forty -gun  fliips :  they  are 
mounted  with  twenty  cannon  on  their  upper  deck,  which  are  nine  pounders, 
and  fix  on  their  quarter  deck,  which  are  fix  pounders. — Falc.  Mar.  DiEL 

%,  In  London,  where  the  Eaft-India  company  hire  all  the  fhips  they 
employ  in  their  trade  from  private  people,  there  is  a  general  condition  in  the 
charter-parties,  that'every  fhip  fhall  make  good  all  damages  that  may  happen 
to  the  goods  on  board  her ;  and  further,  that  the  company  fliall  contribute 
nothing  to  any  damage  the  fhips  may  receive  by  either  cutting  or  carrying 
away  mafls,  lofing  cables,  and  anchors,  or  any  other  direful  effefts  of  tem- 
peftuous  weather  :  fo  that  what  general  cuftom  has  made  a  grofs  average  to 
be  borne  by  fhip  and  cargo,  falls  foiefy  on  the  owners  of  thofe  veffels  the 
company  employ  :   and  the  lofs   of  cables,  anchors,   fails,  and  mafts,  which 

cannot 


E  A  S  T  -  I  N  D  I  A    S  H  I  P  S.  ig, 

cannot  be  replaced  in  India,  but  on  much  more  coftly  terms  than  in  England 
(where  the  premium  of  infurancc  has  only  been  paid  on  its  value)  has 
occafioned  great  difputes  and  controverfies  between  the  infurers  and  owners  of 
thofe  fliips  ;  [o  that  of  late  fome  infurers  will  not  underwrite,  without  the 
exprefs  condition  of  being  free  from  ail  average. — i  Mag.  55. 

3,     Case. — A   policy  of  infurance    upon   Eall-India  fliips,    includes   the 
chance  of  their  being  detained  in  India  and  the  rifque  of  their  country  voyages 

there. The  queltion  at  prefent  debated  was,   "  Whether  there  fliould  be 

new  trials  in  thefe  two  particular  anions  upon  a  policy  of  infurance ;  which 
had  been  tried  befoie  Lord  Mansfield,  at  Guildhall  ;  where  a  verdift  was 
found  for  the  plaintiff,  in  Mr.  Salvador's  cafe  :  and  for  the  defendant  in  Mr. 
Rucker's  cafe  ?  ' — But  there  were  nine  caufes  in  all,  upon  the  feveral  infurances 
of  this  fame  Eaft-India  fliip,  the  Winchelfea,  Captain  Howe,  commander 
(which  were  tried  by  fpecial  juries,  at  different  times): — the  charter-party, 
bearing  date  the  20th  of  Augull  1761,  was  according  to  a  printed  form  which 
has  long  been  in  ufe  : — the  dates  of  the  fafts  are  as  follows  ; — March  the  25th 
1762,  the  fliip  failed  ;  September  the  igth,  ftie  arrived  at  Bombay  ;  Novem- 
bar  the  4th,  (he  left  Bombay  the  firft  time  ;  March  the  5th  1763,  flie  arrived  at 
Calcutta,  Bengal ;  the  28th,  the  prefidency  and  council  of  Bengal  entered 
into  a  new  agreement  with  the  captain  ;  reciting  "  that  the  charter-party 
would  expire  on  the  nth  of  February  1764;  but  that  the  prefident  and 
council,  finding  it  expedient  to  detain  the  fliip  in  India,  and  defirous  of 
having  the  time  limited  in  the  charter-party  prolonged,  &c.  the  indenture 
therefore  witnelleth,  that  the  captain  lets  the  fhip  to  freight,  for  one  whole  year 
from  the  faid  nth  of  February  1764,  &c. :' — J^ily,  the  fliip  arrived  at  Bombay 
a  fecond  time  ;  December  the  nth,  {he  left  Bombay  to  go  to  Bengal ;  1764, 
flie  arrived  at  Bengal  ;  March  the  19th,  the  fliip  left  Bengal  to  go  to  Bombay ; 
the  2  iff  the  fliip  was  loft. — April  the  3d,  Mr,  Hume  received  a  letter  from  the 
captain,  dated  the  14th  of  April  1763,  inclofing  a  copy  of  the  new  agree- 
ment, which  letter  was  publickly  read  in  a  coffee-houfe  ;  April  the  4th,  fome 
infurances  were  made  by  Mr.  Hume;  July  the  17th,  other  infurances  were 
made  by  Mr.  Hume  ;  all  the  other  infurances  were  made  after  the  captain's 
letter  of  the  14th  of  April  1763  was  received,  and  publickly  read  in  a  coffee- 
houfe  ;  October  the  gth  1764,  an  account  was  received  in  London,  of  the 
ihip's  lofs. — All  the  policies  had  this  defcription  ; — "  At  and  from  Bengal,  to 
any  ports  or  places  where  and  whatfoever  in  the  Eaft-Indies,  China,  Perfia, 
or  elfewhere,  beyond  the  Cape  of  Good  Hope,  forwards  and  backwards,  and 
during  her  flay  at  each  place,  until  her  arrival  at  London ;  on  money  ad- 
vanced or  to  be  advanced  for  bills  drawn  by  the  captain  for  the  ufe  of  the  fliip 
Winchelfea,  and  for  account  of  the  owner ;  and  upon  money  advanced  or  to 
be  advanced  as  abfence-money,  to  pay  the  ftiip's  company  ;  all  or  either,  as 
intereft  fhall  appear ;  at  4I.  per  cent." — The  underwriters  infifted,  that  the 
policies  were  void,  becaufc  at  the  time  of  undei'writing,  they  were  not 
exprefsly  told  of  the  new  agreement  "  to  detain  the  fliip  in  India  for  a  year 
longer  than  the  enlarged  time  provided  for  by  the  charter-party,  which  expired 

on 


192 


E  A  S  T  -  I  N  D  I  A     SHIPS. 


on  the  nth  of  February  1764." The  caufes  were  at  firft  tried  with  different 

fuccefs  :  but  all  the  nine  verdifts  were  at  laft  uniform,  for  the  plaintiffs,  the 
infured,  againft  the  underwriters. — The  reafons  which  governed  the  court  on 
granting  or  refufing  new  trials  were,  that  the  underwriters  are  bound  and 
prefumed  to  know  the  courfe  of  the  Eaft-India  trade,  the  terms  of  the  charter- 
party,  and  the  deftination  of  the  India  (liips  (which  are  under  the  direftion  of 
the  company,  and  not  of  their  owners) ; — that  the  charter-party  is  a  printed 
form,  of  a  very  long  {landing ; — that,  befides  the  liberty  thereby  given,  to 
prolong  the  fhip's  flay  for  one  year,  it  is  very  common,  by  a  new  agreement, 
to  detain  her  a  year  longer  (for  no  fhip  comes  home  in  ballaft) ;  and  the 
longer  a  (hip  is  kept,  the  more  beneficial  it  is  to  the  owners  ; — that  the  words 
of  the  policy  are  adapted  to  this  iifage  ;  being  without  limitation  of  time  or 
place  ;  and  without  any  reference  to  the  firft  voyage  particularly  mentioned 
in  the  charter-party ; — that  the  terms  of  the  policy  precifely  defcribe  th^ 
rifque,  in  it's  utmoft  latitude  ;  and  neceffarily  extend  to  every  prolongation 
of  ftay,  and  every  country  voyage,  and  any  of  the  defendants  might  have 
learned  at  the  India-Houfe  all  that  was  to  be  known  ; — that  no  mention  was 
made,  or  queftion  afked,  at  the  time  of  underwriting,  "  When  the  (hip  was 
chartered  ;  when  flie  failed  from  England  ;  when  fhe  arrived  in  India  ;  whe- 
ther fhe  was  continued  a  year,  according  to  the  provifo  in  the  printed  charter- 
party  ?"  and  yet  her  continuance  in  the  Eaft-Indies  depended  on  all  thefe 
fafts  ; — that  if  they  ought  neceffarily  to  be  difclofed,  the  policy  was  void,  to 
the  knowledge  of  the  underwriters,  at  the  time  they  took  the  premium  ; — 
that  the  chance  of  her  ftay  is  one  of  the  rifques  infured ;  the  evidence  in  all 
the  caufes  was  very  ftrong,  that  herftaying  a  year  longer,  if  known,  would 
not  have  varied  the  premium  •, — that  this  fiiip  was  infured  at  the  fame 
premium,  after  the  prolongation  of  her  ftay  in  India  was  known  ;  none  of  the 
defendants  defired  to  be  off,  after  they  knew  that  an  account  of  the  new 
agreement,  "  to  prolong  her  ftay  for  a  year  longer,"  had  been  received  in 
England  upon  the  3d  of  April  1764  ;  which  was  notorious  to  them  all,  before 
the  intelligence  of  her  lofs,  which  came  in  the  Oftober  following  ;  fo  that  if 
there  had  been  any  force  in  the  objeftion,  it  would  have  been  waved  by  the 
acquiefcence  of  the  underwriters,  after  they  were  fully  apprized  of  the  whole. 

Thefe  two  caufes  of  Salvador  v.  Hopkins,  and  Heaton  v.  Rucker,   being 

fo  very  nearly  connefted  with  each  other,  were  taken  up  together,  and  argued 
jointly,   as  if  they  had  been  but  one   fingle  caufe : — the  court  took  time  to 

advife. Lord  Mansfield  now  delivered  the  unanimous  opinion  of  the  court, 

•'  that  there  ought  to  be  a  new  trial  in  the  cafe  of  Heaton  v.  Rucker  ;  but  not 
in  that  ol  Salvador  v.  Hopkins:'' — they  thought  the  u/age  of  the  Eaft-India 
company's  trade,  and  the  courfe  of  their  voyages,  to  be  in  faft  fo  notorious, 
and  fo  well  known  both  to  the  infurers  and  the  infured,  they  muft  be  fuppofed 
fully  apprized  and  fufficiently  conufant  of  it ;  and  that  the  obligation  of  this 
policy  is  to  be  taken,  from  the  words  of  the  charter-party  (which  refer  to  the 
ufage)  and  the  ufage  of  thefe  voyages,  in  the  fame  manner  as  if  it  was 
exprefsly  inferted  in  the  policy  :  his  lordfliip  entered  into  the  reafons  of  their 
determination  in   thefe  two    caufes  with   more   particularity   than   may   be 

neceffary 


E    iM    B    A    R    G     O.  ^gj 

neceffary  here  to  fpecify  ;  as  I  have  already  raentioned  thofe  which  feemed  to 
govern  their  general  determination  in  all  the  nine  caufes. — The  court  efleemed 
this  to  be  the  mod  convenient  way  of  determining  this  queflion  :  becaufe  who- 
ever fliall  hereafter  infure  on  an  Eafl-lndia  fhip,  will  know  that  he  infures  tht- 
contingencies ;  and  may  take  proper  precaution  againfl  them,  if  he  will ; 
whereas  if  every  perfon  infured  fhould  be  obliged  to  open  to  the  infurer  all  the 
grounds  of  his  expeftations  about  the  (hip's  continuance  in  the  Eaft-Indies,  or 
coming  to  England,  it  might  produce  great  litigation  and  confufion  in  cafes 
arifing  upon  thefe  Eaft-India  policies. — The  rules  then  made  were, — That 
in  Salvador  v.  Hopkins,  there  (hould  be  no  new  trial :  but  in  Heaton  v. 
Rucker,  there  fhould  be  a  new  trial. — ^3  Burr.  1707.  Wednefday  the  12th  of 
June  1765. — Heaton  v.  Rucker. 

4.     See  Average,  Bottomry,  Damage,  Eafl-lndia,  General  Average. 

EMBARGO. 

1.   \?  MBARGO   is   an  arrefl  laid  on  (hips   or  merchandife  by  public 
•*^  authority,  or  a  prohibition  of  (late,  commonly  ifTued  on  foreign  fhips, 
to  prevent  their  putting  to  fea  in  time  of  war,  and  fometimes  to  prevent  their 
coming  in,  and  otherwifc  both  to  prevent  their  entrance  and  departure. 

2.  The  prerogative  of  iffuing  proclamations,  is  veiled  in  the  king  alone. 
Thefe  proclamations  have  then  a  binding  force,  when  (as  Sir  Edward  Coke 
obfcrves)  they  are  grounded  upon  and  enforce  the  laxos  of  the  realm  :  for, 
though  the  making  of  laws  is  entirely  the  work  of  a  diftinft  part,  the  Icgiflative 
branch,  of  the  fovereign  power,  yet  the  manner,  time,  and  circumftances  of 
putting  thofe  laws  in  execution  mull  frequently  be  left  to  the  difcretion  of 
the  executive  magiftrate  :  and  therefore  his  conftitutions,  or  edifts,  concern- 
ing thefe  points,  which  we  call  proclamations,  are  binding  upon  the  fubjeft, 
where  they  do  not  either  contradi6l  the  old  laws,  or  tend  to  eflablifh  new 
ones  ;  but  only  enforce  the  execution  of  fuch  laws  as  are  already  in  being, 
in  fuch  manner  as  the  king  fhall  judge  neceflary  : — thus  the  eftabliflied  law  is, 
that  the  king  may  prohibit  any  of  his  fubjc6ls  from  leaving  the  realm  :  a 
proclamation  therefore  forbidding  this  in  general  for  three  weeks,  by  laying 
an  embargo  upon  all  (hipping  in  lime  of  war,  will  be  equally  binding  as  an  a6t 
of  parliament,  becaufe  founded  upon  a  prior  law. — 1  Black.  Com.  270. 

3.  Some  have  doubted  of  the  legality  of  the  thing  ;  but  it  is  certainly  con- 
formable to  the  law  both  of  nature,  and  nations,  for  a  prince  in  diftrefs  to 
make  ufe  of  whatfoever  velfels  he  finds  in  his  ports,  that  are  fit  for  his 
purpofe,  and  may  contribute  to  the  fucceffes  of  his  enterprifes  ;  but  with  the 
tircumllance,  that  he  makes  them  a  rea/onable  recommence  for  their  trouble, 
and  does  not  expofe  either  the  fhips  or  men  to  any  lofs  or  damage. — 
Lex  Merc.  red.  242. 

3  B  4.   Case. 


194  EMBEZZLEMENT. 

4.  Case. — Sands,  owner  of  an  Indiaman,  lying  in  the  river  ready  to  fail. 
Sir  Jofiah  Child,  governor  of  the  Eafl-India  company,  procured  an  order  of 
council  for  arrefting  her  by  admiralty  procefs,  by  which  the  voyage  was  loft. 
— The  jury  find  1,5001.  damages,  and  cofts :  the  court  agreed  that  the  king 
might  lay  ^e/zera/ embargoes,  but  not  for  the  private  advantage  of  a  particular 
trader  or  company. — In  error;  Salk.  31.  Eaft.  Term.  5  Will,  and  Mar)'. — 
Sir  Jojiah  Child  v.  Sands. 

5.  Case. — In  evidence  upon  the  trial  in  an  aftion  upon  a  policy  of 
infurance  the  cafe  appeared  to  be,  that  the  infurers  agreed  to  infure  the  (hip 
from  her  arrival  at  in  Jamaica,  during  her  voyage  to  London  :  and 
an  embargo  was  laid  upon  the  fhip  by  the  government ;  and  afterwards  they 
feized  the  fiiip,  and  converted  her  into  a  fire-fliip,  and  offered  to  pay  the 
owners :  and  the  queflion  was,  If  this  would  excufe  the  infurers  ? — And 
Holt,  C.  J.  feemed  to  incline,  that  it  would  not,  and  that  this  was  within  the 
words,  detention  of  princes,  &c.  but  he  gave  no  abfolute  opinion,  becaufe 
the  caufe  was  referred  to  tlie  three  foremen  of  the  jury. 

6.  If  any  fhip,  or  fliips  infured,  with,  or  without  goods,  fliall  be  detained 
by  his  majefly's  order  (whom  God  preferve)  in  the  ports  of  thefe  kingdoms  of 
Spain,  before  commencing  the  voyage  (lie  is  bound  on,  it  fliall  be  judged  that 
no  cejjion  can  be  made  of  them,  but  rather  the  infurance  in  fuch  cafe  ought  to 
be  held  for  null,  the  affurer  or  affurers  returning  the  premiums,  with  the 
difcount  of  half  per  cent. — Ordin.  of  Bilb. 

7.  Remark. — The  preambleof  the  Stat.  7  Geo.  3.  c.  7.  "  for  indemnifying 
all  perfons  advifing  or  afting  under  the  order  of  council,  laying  an  embargo 
on  all  fhips  laden  with  corn,  or  flour,"  (in  the  recefs  of  parliament  in  1766) 
fays,  "  which  order  could  hot  be  jnjlificd  by  law  ;  but  was  fo  much  for  the 
fervice  of  the  public,  and  fo  neceffary  for  the   fafety  and  prefervation   of  his 

majefty's  fubje6ls,  that  it  ought  to  be  juflified  by  aft  of  parliament." This 

embargo  (as  was  alleged)  faved  the  people  from  famine  ;  yet  was  declared 
illegal  by  the  above  aft  of  the  whole  legiflature  (including  the  king  him- 
felf  who  laid  it)  which  was  therefore  needful  to  fanftify  it:  and  the 
.proprietors  of  the  embargoed  fliips  and  cargoes  were  accordingly  indemnified 
by  government. 

8.  See  Abandonment,  Bottomry,  Detention,  General  Average,  Recapture, 
Rejlraint,  Wages. 


EMBEZZLEMENT. 

1.  T  F  goods  are  ftolen  or  embezzled  on  fliipboard,  the  mafter,  and  not  the 
■■^-•-  infurers,   is  liable. — Lex  M'crc.  red.  226. 

2.     By 


END     OF    VOYAGE     OR    RISQUE. 


195 


2.  By  Stat.  7  Geo.  2.  c.  15.  f.  1. — No  owners o^  any  fliip  fliall  be  liable  to 
anfwerany  lofs  by  reafon  of  embezzlement  (by  the  mafler  or  mariners)  of  any 
goods  fhipped  on  board,  or  for  any  aft  done  by  the  mafler  or  manners  without 
the  privity  of  fuch  owners,  further  than  the  value  of  the  (hip,  and  the  amount 
of  the  freight  during  the  voyage  wherein  fuch  embezzlement  or  other  mal- 

verfation  fhall  be  committed. S.  2.  If  feveral  freighters  (hall  fuffer  damage 

by  the  means  afore faid  in  the  fame  voyage,  and  the  value  of  the  fhip,  and 
the  amount  of  the  freight,  (hall  notbefufficient  to  make  compenfation,  fuch 
freighters  fliall  receive  fatisfaftion  in  average,  in  proportion  to  their  lofles  ; 
and  it  fliall  be  lawful  for  fuch  freighters,  or  for  the  owners  of  fuch  fiiip,  to 
exhibit  a  bill  in  equity  for  a  difcovery  of  the  total  amount  of  fuch  lofles,  and 

alfo  of  the  value  of  fuch    fliip   and  freight,   and  for  an  equal  payment. 

S.  3.  If  fuch  bill  fliall  be  exhibited  by  the  part-owners  of  fuch  {hip,  the 
plaintiffs  fliall  annex  an  affidavit,  that  they  do  not  collude  with  any  of  the 
defendants,  and  fliall  offer  to  pay  the  value  of  fuch  fliip  and  freight,  as  fuch 

court  fliall  direft,   as  in   cafes  of  bills  of  interpleader. S.  4.  Nothing  in 

this  aft  fliall  difcharge  any  remedy  which  any  perfon  may  have  ag^inft 
the  mafter  and  mariners. 

3.  Case. — 'The  defendant  was  fole  owner  of  a  fliip,  which  he  let  to  one 
Fletcher  for  a  voyage  at  a  certain  fum,  and  Fletcher  was  to  have  the  benefit 
of  carrying  goods.  The  plaintiff"  fent  a  quantity  of  moidores,  and  had  bills 
of  lading  figned  by  the  captain ;  and  many  of  the  moidores  not  being  deli- 
vered according  to  tlie  confignment,  an  aftion  was  brought  againft  the 
defendant,  the  owner  of  the  fliip,  to  make  him  liable  as  far  as  the  fliip  and 
freight  were  worth,  according  to  7  Geo.  2.  c.  15. — For  the  defendant  it  was 
infifled,  that  though  the  fliip  was  his  property,  yet  he  was  not  fo  owner  as  to  be 
liable  to  the  plaintiff;  and  that  Fletcher  is  for  this  purpofe  the  owner:  but 
it  appearing  the  defendant  had  covenanted  for  the  condition  of  the  fliip,  and 
the  behaviour  of  the  mafter,  the  chief  juftice  held,  he  was  liable  to  the 
plaintiff^;  and  the  freight  he  had  in  general  from  Fletcher  was  fufficient, 
though  the  identical  freight  for  the  gold  belonged  to  the  other,  and  Fletcher 
had  only  the  ufe  of  the  fliip,  but  no  ownerfliip. — Stran.  1251.  HiU.  ig 
Geo.  2. — PariJJi  v.  Crawford. 

4.  If  any  of  the  fliip's  crew  do  conceal  or  embezzle  any  goods  in  cafe  of 
•fhipwreck,  they  fliall  be  punifliedwith  death. — Ordvn.  of  Rott. 

5.  See  Barratry,  Mariner,  Mafier,  Salvage,  Shipwreck,  Theft. 
END     OF     VOYAGE     OR     RISQUE. 

1.     ACCORDINGto  our  policies,  the  rifque  on  zijkip  continues  "  until 
•^^  flie  fliall  be  arrived  and  hath  moored  at  anchor  twenty-four  hours  in 
good  fafety ;"— and  on  the  goods  "  until  the  fame  be  difcharged  and  fafely 
landed,"  at  the  port  or  place  of  deftination  mentioned  in  the  policy. 

2.    If 


196         ExNjd    of   voyage   or  risque. 

2.  If  the  policy  of  afTurance  run  "  until  the  (laip  (hall  have  ended  and  be 
difcharged  of  her  voyage  ;"  arrival  at  the  port  to  which  (lie  is  bound  is  not  a 
difcharge  until  fhe  is  unloaded  :  per  totam  cur.  upon  a  demurrer. — Skin.  243. 
Mich.   1  Jac.  2.  B.  R. — Anon. 

3.  A  MERCHANT  infures- his  goods  from  London  to  Sallee,  and  there  to 
be  landed  :  the  faclor  after  arrival,  having  opportunity,/*?//^  the  cargo  aboard 
the  fame  fliip  without  ever  unlading  her:  and  the  buyer  agrees  for  the  freight 
of  thofe  goods  for  the  port  of  Venice  ;  before  flie  breaks  ground,  the  lliip 
takes /V^. — The  afl'ured  and  buyer  are  abfolutely  without  remedy;  for  the 
property   of  the  goods  becoming  changed,  and  freight   being  contrafted  de 

novo,  the  fame  was  as  much  as  if  the  goods  had  been  landed. And  fo  it  is 

if  the  faftor,  after  her  arrival,  had  contrafted  for  freight  to  another  port,  and 
the  fliip  had  happened  to  take  fire,  the  afl'urers  are  hereby  abfolutely 
difcharged  for  ever. — Molloy,  b.  2.  c.  7.  f.  13. — Loccen.  1.  2.  c.  5.  f.  g. 

4.  It  hath  oftentimes  happened,  that  by  a  candle  unadvifedly  ufed  by  the 
boys  or  otherwife,  before  the  Ihips  have  been  unladen,  they  have  been  fet  on 
fire,  and  burned  to  the  very  keel,  with  all  the  goods  in  them,  and  the  alfurers 
have  paid  the  fums  of  money  by  them  affured  :  neverthelefs  herein  the 
alfurers  might  have  been  wronged,  although  they  bear  the  adventure  until  the 
goods  be  landed  ;  for  it  comes  to  pafs  many  times  that  whole  (hips'  ladings  are 
fold  on  fiiipboard  and  never  difcharged,  becaufe  they  fhould  avoid  the 
payment  of  culloms  and  imports,  and  therefore  they  will  break  no  bulk,  but 
depart  for  fome  other  place. In  like  manner  divers  Ihips  laden  with  com- 
modities, upon  bargains  and  contrafls,  will  make  further  voyages,  and  not 
difcharge  in  the  place  where  it  was  firfl.  intended  and  named  in  the  policy  of 
afTurance  : — now  if  after fuch  a  bargain  made,  the  (hip  and  goods,  either  by 
fire,  or  any  other  misfortune,  do  perifh,  the  alfurers  are  not  to  anfwer  for  that 
lofs,  notwithflanding  the  general  words  ("  and  of  all  other  perils,  loffes  and 
misfortunes  whatfoever  they  be,  and  howfoever  they  fliall  happen  or  come, 
to  the  hurt  and  detriment  of  the  goods  and  merchandifes,  or  any  part 
thereof")  contained  in  the  policy  ofaffurance. — Mai.  Lex  Merc.  112. 

5.  Case. — A  fiiip,  the  Margaret,  Capt.  Burke,  was  infured  from  Limerick 
to  Ilavrc-dc-Grace  :  flie  arrived  there  after  having  fuffered  damage  during 
the  voyage  ;  and  whilll  the  repair  of  thofe  damages  was  performing,  being 
fome  weeks  after  her  arrival,  (he  \sj2Lsfeizcd  in  the  port  of  Havre,  an  cvibargo 
having  been  laid  there  on  Briiifh  fliips,  and  hoftilities  commenced  between 
France  and  England. — The  owner  of  the  fhip  brought  a6lions  againfl  the 
infurers,  and  demanded  not  only  an  average  of  about  14I.  per  cent,  for  the 
repairs  which  had  been  made,  but  alfo  a  total  lofs  fuflained  by  the  feizure  of 
the  fliip,  as  having  happened  in  covfequence  of  the  necejjity  of  her  continuing 
at  Havre  to  repair  ;  alleging  that  without  that  neceffity,  and  if  no  damage 
had  happened,  Ihe  would  have  departed  from  thence  on  her  return  to  Lime- 
rick before  the  feizure. — The  defendants  paid  about   lol.  per  cent,  into  court, 

as 


ENEMY.  1^7 

as  the  full  amount  of  the  repairs  for  the  damages  accrued  during  the  voyage, 
which,  according  to  the  policy,  ended  "  twenty-four  hours  after  the  (hip 
arrived,  and  was  fafely  moored"  at  Havre  ;  but  faid,  that  they  were  not 
anfwerable  for  any  accident,  or  lofs,  after  that  time ;  and  that  the  plaintift* 
might  have  made  a  new  infurance  upon  the  {hip,  from  that  period,  for  the 
voyage  home. — Verdift  for  the  defendant. — At  Guildhall,  fitt.  aft.  Trin.  1779. 
— Roche  V.  Thompfon. 

6.  See  Africa,  Amjlerdam,  Bilboa,  Bottomry,  Commencement  of  Voyage  or 
Rifque,  ConftruElion,  Copenhagen,  Deviation,  Greenland,  Lighter,  Mooring, 
Nexofoundland,  Policy,  Property,  Rifque,  Unloading,  Voyage. 


ENEMY. 

1.  T  T  has  long  been  the  fubjeft  of  great  controverfy  in  the  commercial 
-*•  world,  "  Whether  it  be  right,  advantageous,  or  even  legal,  to  irfure  an 
enemy  s  flips,  or  merchandifes,  in  time  of  war  or  hojlilities  ?" — I  fhall  therefore 
collect,  and  lay  before  my  readers,  an  abftratl  of  all  the  arguments  which 
have  been  made  ufe  of  for  and  againll  the  practice,  with  feme  interefting 
remarks  thereon, 

2.  Those  who  maintain  the  affirmative  o^  this  queflion  fay, — that  it  is  idle 
to  make  laws  to  prevent  a  tranfaftion  which  may  be  carried  on  by  means  of  a 
written  correfpondence  ;  and  that,  even  if  fuch  prohibitions  could  put  a  Hop 
to  the  praftice,  it  would  be  highl)^  impolitic  to  lay  fuch  a  reftraint  on  the  com- 
merce of  infurance,  which  produces  a  certain  profit : — that  we  ought  to  be 
cautious  when  any  new  regulation  is  propofed  with  refpeft  to  trade,  efpecially 
a  regulation  which  may  perhaps  ftrip  us  of  the  only  branch  of  trade  we  enjoy 
almoft  unrivalled,  and  may  very  probably  transfer  it  to  our  enemies  : — that 
there  is  a  great  deal  more  oT  the  infurance  bufmefs  done  in  England,  than  in 
all  Europe  befides  ;  and  it  is  fuch  a  trade  as  mufl  always  leave  a  large  balance 
in  ready  money  here  in  England,  from  the  great  profits  made  by  the  infurer, 
the  profits  made  by  the  broker  or  office-keeper,  the  profits  made  by  the  faftor, 
and  the  profits  made  by  our  dealers  in  exchange  : — that  as  foon  as  the  French 
Ihould  hear  of  a  prohibitory  law  being  pafled  here,  public  offices  of  infurance 
will  increafe  in  France,  and  multitudes  of  rich  men  there  will  undertake  the 
bufinefs  : — that  the  French  merchants  will  find  an  eafy  and  fecure  accefs  to 
infurance  at  home,  the  very  moment  we  exclude  them  from  it  in  England : — 
that  if  the  premium  of  infurance  be  fo  high,  that  no  profit  the  merchant  can 
expeft  will  anfwer  it,  and  fomething  more  for  his  own  trouble,  and  the  ufe 
of  his  money,  he  will  certainly  refolve  to  fend  out  no  cargo  at  all  ;  therefore 
if  by  the  fuccefs  of  our  fquadrons  and  cruifers,  we  fliould  be  able  to  raife  the 
price  of  infurance  upon  French  ffiips  to  fuch  a  height,  that  no  trade  can  bear 
it,  we  ffiall  much  more  effe£lually  and  more  fafely  put  an  end  to  the  French 
commerce,  at  lead  in  their  own  ffiips,  than  we  can  do  by  prohibiting  infurance 

3   C  on 


198  E        N        E        M        Y. 

on  them  ;  and  if  they  fliouki  fall  upon  any  way  to  carry  on  their  commerce 
in  neutral  bottoms,  this  regulation  can  no  way  afFeft  it :— that  if  you  cramp 
the  bufinefs  by  prohibitions,  you  will  extinguilh  the/pirit  here,  and  you  may, 
vou  certainly  will  raife  it  in  France  ;  fo  that  in  a  few  years  the  French  might 
become  the  chief  infurers  of  Europe. 

3.  On  the  other  hand,  it  is  urged  that,  by  the  Stat.  25  Edxv.  3,  and  by 
the  conftant  pracHce  hnce  that  time,  it  is  declared  high  treafon  to  aid  the 
king's  enemies  either  within  or  without  the  realm  ;  and  it  is  ufual  in  his 
majefly's  declaration  of  war  againll  France,  exprefsly  to  forbid  us  to  hold  any 
correfpondence  or  communication  with  the  fubjefts  of  the  French  king  : — 
that  without  a  cheap,  eafy,  and  fecure  accefs  to  infurance,  no  nation  can  ever 
acquire,  or  long  preferve,  an  extenfive  commerce  ;  and  by  preventing  the 
French  merchants  meeting  with  any  infurances  here,  during  a  war,  we  fhall 
very  much  diflrefs,  if  not  altogether  ruin  their  commerce,  and  force  many  of 
them  out  of  trade,  by  the  captures  we  might  make  ;  for,  from  experience  we 
know,  that  an  opinion  prevails  generally  among  the  merchants  in  France, 
that  they  cannot  depend  upon  any  infurances  but  thofe  they  meet  with  in 
England  : — that  there  is  reafon  to  fufpeft,  that  fome  of  our  infurers  may  give 
intelligence  to  their  correfpondents  in  France,  fo  far  as  they  can  learn,  of 
the  ftations  and  courfe  both  of  our  cruifers  and  privateers  : — that  we  ought 
to  take  every  method  in  our  power  for  diftreflTmg  the  declared  enemies  of  our 
country  : — that  although  to  evade  thefe  arguments,  it  is  faid,  that  the  French 
might  refolve  to  carry  on  their  commerce,  and  fupply  their  colonies,  by  means 
of  neutral  fliips,  which  might  be  all  infured  in  England  ;  yet,  we  might 
prohibit  infurances  being  made  upon  any  fhip  bound  to  or  from  any  port  in 
the  French  dominions:  and  with  regard  to  their  colonies,  they  could  not  be 
fupplied  even  by  means  of  neutral  fiiips ;  for,  as  their  colonies  can  be  fupplied 
no  way  but  by  fea,  if  we  fiiould  block  them  up  by  fea,  in  order  to  force  them 
to  furrender  for  want  of  fubfiftence,  we  fhould  have  a  right,  by  the  law  of 
nations,  at  lead  to  feize,  if  not  confifcate,  every  neutral  fhip  that  attempted  to 
carry  them  any  provifions : — that,  as  our  infurers  infure  at  a  cheaper  rate, 
and  in  cafe  of  a  lofs  pay  more  punftually,  than  the  infurers  of  any  other  country 
are  found  to  do,  we  fhall  by  the  fame  means  recover  the  poffefTion  of  this 
bufinefs  whenever  we  pleafe  : — -that  the  praftice  gives  the  enemy  all  the  advan- 
tages of  the  principle  of  infurance,  and  defeats  the  firfl  principle  of  war  with 
refpeft  to  the  infurers : — that  if  commerce  is  the  fource  of  maritime  power, 
and  it  is  the  lirft  principle  of  war  to  weaken  and  deftroy  that  power  in  your 
enemies,  undoubtedly  you  are  guilty  of  the  greatefl  pofhble  folly  and  madnefs, 
if  you  render  the  commerce  of  your  enemy  fecure,  and  give  her  new  fources 
of  maritime  power : — that  befides,  if  money  is  the  foul  of  war,  it  may  be  more 
advantageous  to  your  enemy  to  be  paid  ready  money  for  flnp  and  cargo, 
when  taken,  by  means  of  infurance,  than  to  wait  the  flow  return  of  the 
merchants  to  whom  the  cargo  was  configned,  had  it  arrived  in  fafety  : — that 
fuppofing  your  infurers  to  be  confiderable  gainers,  you  muff  be  fenfible  this 
muftbe  a  branch  of  commerce  conduced  onfalfe  principles  ;    for  individuals 

would 


^ 


iL       N        E        M        Y.  199 

would  gain,  while  the  nation  fuffered  by  having  the  hands  of  her  enemy 
(Irengthened  : — that,  however,  if  the  naval  power  of  the  infurers  is  fuperior  to 
that  of  the  infured,  it  is  mod  likely  that  the  infurers  would  lofe  by  this  illicit 
commerce  with  the  enemy  ;  and  thus  what  the  fuperior  naval  llrength  of  our 
country  gained  on  the  one  fide,  would  be  thrown  away  by  the  mercliant- 
infurcrs  on  the  other. 

4.  During  the  war  in  1747,  the  parliament  of  Great-Britain,  at  the  time 
they  prohibited  all  trade  with  France,  took  into  conhderation  whether  the 
infurance  of  goods,  imported  or  exported  from  France,  and  her  colonies, 
fliould  not  likewife  be  prohibited  ? — Many  merchants  magnified  the  advantage 
arifing  from  this  particular  branch  of  infurance  ;  feveral  fpeeches  made  in 
parliament  on  this  occafion,  all  agreed  in  this  fundamental  point,  that  "  no 
ajfijlance,  or  means  to  prefcrve  the fuhjlance  of  the  enemy,  ought  to  be  alloxced 
of-:'  but  thofe  perfons,  whofe  immediate  interefl  it  was  to  execute  the  orders 
for  thefe  infurances  for  the  enemy,  infilled,  with  great  confidence,  that  they 
were  attended  with  large  profits  in  general ;  and  alleged  that  money  being 
fcarce,  the  making  fuch  profits  on  the  enemy  ought  not  to  be  negle6led  ;  and 
that  this  lucrative  bufinefs  fliould  not  be  driven  into  other  countries  by  a  pro- 
hibition here. — Several  worthy  members  of  parliament  took  pains  to  enquire 
into  the  true  ftate  of  this  bufinefs,  and  to  find  out  whether  in  reality  Great- 
Britain  was  fo  much  benefited  by  foreign  infurances  as  was  fuggelled ;  and 
many  difinterefted  merchants  impartially  declared  their  opinion  thereon  to  the 

following  effeft  : that  the  {n^^o^ftd^ profit  of  3  per  cent,  on  a  premium  of  30 

per  cent,  faid,  in  fome  of  the  above-mentioned  fpeeches  and  calculations, 
to  be  aftually  made,  '\%  quite  uncertain  ;  that  in  proportion  as  the  number  of 
the  Britilh  fliips  of  war,  and  privateers  increafe,  much  more  than  is  calculated 
to  be  gained,  may  be  lofi ;  and  that  when  only  i8  percent,  premium  was 
paid  for  infurance  here,  the  infurers,  as  well  as  others,  aftually  knew  they 
were  great  lofers  by  fuch  rifques  : — that  no  merchants  by  any  fl^ill  in  com- 
puting of  chances,  or  by  any  other  means,  can  demonftrate  what  the  profit 
on  any  voyages  will  be  ;  and  that  all  that  can  be  known  is,  that  thofe  alone 
have  reafon  to  promife  themfelves  advantage  from  infurances,  who,  in 
proportion  as  the  premiums  rife  and  fall,  and  the  circumftances  are  more  or 
lefs  dangerous,  underwrite,  or  do  not  underwrite,  greater  or  lefs  fums  : — 
that  we  have  more  or  lefs  reafon  to  expeft  profit,  or  lofs,  from  foreign 
infurance,  in  proportion  as  there  is  a  greater  or  lefs  number  of  perfons  who 
have  fufBcient  experience,  and  know  how  to  make  a  proper  choice  : — that  it 
is  evident,  if  more  clear  money  be  paid  for  lolfes  upon  foreign  infurances, 
than  the  grofs  fums  received  for  premiums,  and  all  charges,  amount  to,  the 
articles,  fet  forth  in  the  above-mentioned  calculations,  of  commifiion, 
brokerage,  and  deduftions,  are  by  no  means  to  be  confidered  as  certain  and 
indifputable  items  of  profit ;  for  though  they  bring  clear  fums  into  the  pockets 
of  the  faflors,  or  brokers,  who  negociate  fuch  infurances,  the  loffes  paid  by 
infurers  may  greatly  exceed  the  whole  foreign  difburfement ;  and  confequently 
the  balance  will  be  a  national  lofs :    this  point,  therefore,  as  mentioned  above, 

is 


200 


N        E        M        Y, 


is  extremely  diHicult  to  afcerlain  ;  but  there  is  a  plain,  and  inconteftable 
argument  againft  foreign  infurances  being  made  for  an  enemy,  which  will 
always  fubfifl,  fo  long  as  Great-Britain  has  the  fuperiority  of  naval  power, 
viz.  that  the  great  objeft  of  a  maritime  nation  fhould  be,  to  take  advantage 
of  any  rupture  with  another  trading  flate,  to  deflroy  and  dijirefs  their  flapping, 
and  commerce,  and  to  cut  olf  all  refources  for  naval  armaments  ;  but  to 
permit  fuch  infurances  is  manifeflly  to  defeat  this  end,  and  is  contradiftory 
to  common  fenfe ;  for  the  government,  and  private  merchants  are,  on  one 
hand,  fitting  out  veffels  at  a  great  expence  to  make  captures,  and  to  annoy, 
and  dillrefs  the  enemy  •  whilfl  another  fet  of  merchants  make  good  the  lolles, 
and  furnifli  means  for  the  continuance  of  their  commerce  : — that  when  orders 
come  for  infurances  from  places,  where  the  eager  purfuit  of  premiums  is  as 
llrong  as  it  is  here,  it  fliews  a  higher  premium  has  been  there  infifted  on ; 
and  as  people  on  the  fpot  can  be  better  judges  of  the  nature  of  the  concern, 
the  navigation,  fhips,  commanders,  &c.  than  thofe  at  a  diftance,  there  can  be 
little  hopes  of  profit  bv  infurances  which  they  reje6l : — that  as  it  is  now 
cudomary  to  accept  of  ejtimations,  in  which  the  foreigner  infured,  in  cafe  of 
a  lofs,  finds  his  account  better  than  if  the  vefiel  had  not  been  loft,  or  taken  ; 
nay,  it  is  agreed  to  pay  fuch  a  fum  infured,  whether  on  board  the  fhip  or  not; 
it  is  evident  that  fuch  agreements  have  a  bad  tendency,  as  they  give  fo  much 
room  for  frauds  : — that  no  perfon  ever  had  proved  to  a  certainty,  whether 
by  infurance  on  foreign  trade,  more,  on  the  whole,  had  been  gained  than  loft  : 
— that  it  was  contrary  to  found  and  good  policy,  to  grant  ajfijlance  to  under- 
takings which  were  contrary  to  the  general  intereft,  and  diametrically  oppofite 
to  the  intention  of  prohibiting  the  trade -w'wh.  France;  the  natural  confequence 
of  which  fliould  have  been  the  prohibition  o^infuring  their  fliipsand  goods  : — 
this  is  to  be  underftood  only  in  times  of  war,  for  in  thofe  of  peace,  fuch 
infurances  fiiould  be  confidered  as  a  bufinefs  that  is  to  be  left  to  the  free 
will  of  the  merchant. 

5.  It  has  been  furdier  obferved,  that  although  our  infurers  may  be 
gainers,  upon  the  zoholc,  by  the  credit  fide  of  their  premiums  exceeding  the 
debit  fide  of  their  loftes ;  yet  the  queftion  is,  out  of  whofe  pockets  do  fuch 
premiums  arife,  in  time  of  war? — If  they  wholly  arofe  from  our  enemies  who 
infured,  then  our  enemies  would  pay  more  for  the  price  of  infurance  than  they 
loft ;  which  cannot  be  the  cafe  : — from  whom  then  does  this  furplufage  of 
premiums  arife,  which  make  our  infurers  gainers,  but  from  our  own  Britifli 
merchants  ?  and,  if  fo,  when  an  enemy's  fliip  is  taken  that  has  been  infured  by 
our  infurers,  the  lofs  does  not  fall  either  upon  the  infurers  (if  they  are  gainers 
on  the  whole)  or  upon  the  enemy,  but  it  falls  upon  our  own  Britifii  merchants, 

whofe  premiums  muft  pay  it : befides,  as  oui-  enemies  do  not  feel  the  lofs, 

are  they  not  enabled  the  better  to  fit  out  more  ftiips  of  war  and  privateers  to 
annoy  our  own  merchants  ?  does  not  this  neceflarily  tend  to  raife  the  price  of 
infurance  ftill  higher  and  higher  upon  them  ?  and  does  not  this  ftill  the  better 
enable  our  infurers  to  infure  the  fhips  of  our  enemies,  and  to  be  inftrumental 
to  the  prolongation  of  the  war?   do  not  thefe  high  infurances  clog  our  whole 

trade 


E       "N        E        M 


201 


trade  at  fucli  times,  lefTen  the  public    revenue,  and  add  to  the  evil  of  war? 

Finally,  it  is   added,  that  our  principal  merchants,    being  the  greateR 

underwriters,  become  difinclined  to  ht  out  privateers  to  cruife  on,  and  diftrefs 
the  enemy,  rather  contenting  themfelvcs  with  the  expetlation  of  gaining  the 
premiums  from  them  ;  and  therefore  wifhing  to  contribute  to  the  fifcty  and 
arrival  of  their  propert)',  and  the  fuccefs  of  their  commerce. 

6.  Remarks. — It  is  the  opinion  of  fomc  civilians  that  "  the  infuring  the 
property  of  enemies  is  in  itfelf  illegal,  and  a  fpecies  of  treafon  againil:  our 
country  ;  therefore  it  is  evidently  null  and  void ;" — no  Britilh  fubjeft  can 
have  a  right  to  infure  the  enemy's  loffes,  more  than  he  has  to  alhft  him  by 
main  force,  as  both  ultimately  tend  to  the  fame  point,  the  Jiipfwrt  of  the 
power  intended  to  be  overthrown: — all  Hates,  at  the  commencement  of 
hoftilities,  commence  them  in  hopes  of  vitlory  ;  but  underwriters,  of  the  clafs 
in  queftion,  revoke  this  order,  and  infure  in  hopes  of  defeat : — hence  many 
of  them  are  the  befl  of  fpies  for  our  enemies,  giving  every  intelligence  by 
which  their  fliips  may  be  enabled  to  efcape,   and  by  falfe  lights    decoying 

thofe   of  their   country   into   the    hands   of   it's    foes. In    every    policy, 

therefore,  the  cafe  o^  war  fhould  be  exprefsly  excepted,  in  order  to  prevent 
cavil ;  but  this  precaution  is  not  abfolutely  neceffary,  as  the  law  of  nations, 
which  muft  be  founded  on  good  fenfe,  abfolutely  prohibits  fuch  a  commerce: 
— every  contraft,  by  which  a  public  enemy  is  upheld,  mull  be  illegal ;  and 
in  the  prefent  inflance,   where    the    conted  is  about   commerce,  no  method 

more  effeftual  for  upholding  the  enemy  can  be  devifed. As  the  intention 

of  infurance  is  to  render  navigation  and  commerce  more  fafely,  eafily,  and 
conveniently  carried  on,  it  is  plain  that  the  reafon  of  war  altogether  requires 
that  the  infuring  of  the  enemy "s  property  be  not  allowed. — When  the  States 
General  were  at  war  with  Spain,  in  1622,  they  proclaimed  all  infurances  void, 
which  were  made  before  or  after  the  edict,  by  the  inhabitants  of  the  United 
Netherlands,  upon  effefts  belonging  to  the  fubjefts  of  the  king  of  Spain, 
laying  a  penalty  on  thofe  who  fhould  do  fo  ;  which  feems  very  juft,  becaufe 
in  all  declarations  of  war,  or  commidions  of  hoftilities,  every  one  is  com- 
manded to  do  as  much  damage  to  the  enemy  as  he  can,  fo  that  he  is  alfo 
forbid  to  confult  the  convenience  of  the  enemy:    the    general    law   of  war 

requires  it. It  appears  a  matter  of  much  uncertainty  whether  the  infuring 

of  the  fliips  and  property  of  enemies  be  profitable  even  to  the  infurers, 
notwithftanding  the  opinion  of  Sir  John  Barnard  was  in  the  affirmative  ;  but 
it  is  pretty  certain  that,  if  the  expence  of  armaments,  viftualling,  manning, 
wages,  wear  and  tear,  damage,  &c.  &c.  &c.  of  men  of  war,  privateers, 
letters  of  marque,  with  various  other  detriments  and  difadvantages,  be  taken 
into  the  account,  not  to  mention  the  temptation  it  is  to  give  intelligence  to 
the  enemy,  and  to  the  commiftion  o^ frauds  by  them,  the  balance  on  the 
whole  cannot  well  be  in  favour  of  the  nation. — The  Dutch,  who  have  feldom 
overlooked  any  advantage   to  themfelves  in   trade,  have   always   thought  it 

neceffary  to  prohibit  this   kind  of  infurance. Upon  the  whole,  therefore, 

the  aft  of  the  Britilh  parliament,  21  Geo.  2.  made  to  prohibit  infuring  the 

2  D  enemy's 


202 


EQUITABLE     SOCIETY. 


enemy's  fliips  and  merchandifes,  during  the  continuation  of  the  then  war  with 
France,  appears  to  have  been  highly  pohtic  and  worthy  of  much  approbation. 

7.  Les  Anglois  font  encore  dans  la  maxime,  que  ralTu ranee  des  vaifTeaux 
ennemis  doit  etre  permife  &  favorifee  :  fi'  on  leur  objefte,  que  le  vailfeau 
etant  pris,  il  ne  revient  a  la  nation  qu'  une  partie  de  la  chofe  qu'  elle  devoit 
avoir  toute  entiere  ;  ils  repondent,  que  cette  perte  eft  couverte  pour  I'etat  qui 
raffemble  toutes  les  aflurances,  par  la  valeur  de  la  prife  qu'  il  gagne.  Son 
gain  feroit-il  plus  grand  s'il  abandonnoit  le  profit  des  primes?  Non,  fans 
doute,  puifque  ce  profit  ell  regie  fur  I'etendue  des  rifques.  L'affureur,  ou  la 
nation,  etant  toujours  la  maitrelle  d'aflurer,  ou  de  ne  pas  afl'urer,  a  foin  que 
la  proportion  entre  la  prime  8c  les  rifques  foit  en  fa  faveur  ;  d'  ou  il  refulte 
que  la  fomme  des  primes  reunies  excede  neceflairement  la  "valeur  des 
vaifTeaux  qui  tombent  dans  le  cas  d'  etre  pris, — Did.  da  Citoyen. 

8.  Nothing  belonging  to  a  declared  enemy  of  the  kingdom  (hall  be 
infured,  under  penalty  of  the  infurance  being  void,  and  the  delinquent  to 
forfeit  the  amount  of  the  fum  to  which  he  had  fubfcribed,  one  half  to  go  to  the 
informer,  and  the  other  to  the  cheft  of  the  infurance-court  ellablilhed  by 
us. — Ordin.  of  Stockli. 

g.  See  Capture,  Conjifcation,  Contraband,  Flota,  France,  Freedom  of 
Navigation,  Liter ejl,  Laio  of  Nations,  Prize,  Property,   Treaty,   War. 

EQUITABLE      SOCIETY. 

1.  ''■"'HE    fundamental  parts  of  the  conftitution  of  this  fociety  (ftiled  the 

-^     Society  for  equitable  nfjitrances  on  lives  and  furvivorfiips,  eft abliflied 

by  deed  enrolled,  in  his  majefty's   court  of  King's  Bench  at  Weftminfter,  in 

)  are  as  follow,   viz. 1.  That  in  the  fame  manner  as  in  the  Hand- 

in-Hand  and  Union  aflurance-offices  of  houfes  and  goods  from  fire  (both  in 
like  manner  eftabliflied  by  deed  enrolled)  fo,  in  this  fociety,  the  afTured  are 

viutually  affurers  one  to  the  other. 2.  A  life  may  be  infured    from  the  age 

of  eight  lofixtyfeven,  for  any  certain  time,  or  for  the  whole  continuance  of 
the  life,  upon  payment  either  of  a  grofs  fum,  or  of  an  annual  premium, 
each  proportionate  to  the  hazard  of  the  age  at  which  the  life  begins  to  be 

aftured,    and  to  the  time  the  affurance  is  to  continue. 3.   Aflurance  may 

be  made  for  any  fum  from  20I.  to  2,oool. 4.   The  following  tables  ftiew 

the  rate  of  annual  premiums  for  affurances  made  on  a  fingle  life  for  one  year, 
for  the  certain  term  oS.  feven  years,  and  for  the  xvhole  continuance  of  life ; 
whereby  any  perfon  will  be  enabled  nearly  to  eftimate  the  premium  to  be  paid 
for  any  term  greater  or  lefs  than  feven  years  :  but  every  policy  becomes  void, 
upon  the  party  whofe  life  is  afTured  going  beyond  the  limits  of  Europe,  unlefs 
licence  fhall  have  been  fpecially  obtained  from  the  court  of  direftors,  and  a 
proportional  premium  paid,  or  dying  upon  the  feas  :  the  policies  of  perfons 
aftured  on  tlieir  own  lives  alfo  become  void,  if  the  aftured  die  by  their  own 
hands,   or  by  the  hands  of  juftice. 

A  Table 


EQUITABLE     SOCIETY. 


203 


A  Table  of  premiums,  for  affuring  the  fum  of  one  hundred  pounds,  upon  the 
life  of  any  healthy  perfon,  from  the  age  of  eight  to  lixty-feven. 


Seven    year 

,    at 

For 

the 

whole 

Seven   years,    at 

For 

the 

whole 

Age 

One  Yea 

r. 

an  annua] 

pay. 

Life,  at  an  annu- 

Age 

One  Yeai. 

au  annua 

pay- 

Life, 

at  an 

annu- 

ment  of 

al 

payment  of 

ment  of 

al  payment 

of 

8 

i       9 

0 

I        10 

7 

2 

2 

10 

38 

2 

14 

11 

3 

0 

6 

4 

3 

lO 

9 

»       9 

3 

1        10 

8 

2 

2 

11 

39 

2 

17 

0 

3 

2 

9 

4 

5 

10 

10 

»       9 

6 

1        10 

8 

2 

3 

2 

40 

2 

19 

2 

3 

5 

1 

4 

7 

11 

11 

1       9 

7 

1        11 

1 

2 

3 

6 

41 

3 

1 

5 

3 

7 

8 

4 

10 

2 

12 

»       9 

10 

1        11 

5 

2 

3 

1  1 

42 

3 

3 

7 

3 

ID 

3 

4 

12 

6 

^3 

1     10 

1 

1        11 

7 

2 

4 

6 

43 

3 

6 

1 

3 

13 

1 

4 

H 

11 

H 

1       lO 

3 

1        11 

9 

2 

5 

5 

44 

3 

8 

6 

3 

16 

0 

4 

17 

5 

15 

1      11 

0 

1        12 

7 

2 

6 

6 

45 

3 

11 

0 

3 

18 

6 

5 

0 

0 

16 

1      11 

3 

1        12 

11 

0 

7 

9 

46 

3 

13 

6 

4 

1 

3 

5 

2 

4 

17 

1      n 

9 

^        13 

8 

2 

8 

11 

47 

3 

16 

2 

4 

1 

0 

5 

4 

10 

18 

1        12 

5 

1        14 

3 

2 

10 

2 

48 

3 

18 

10 

4 

6 

10 

5 

7 

5 

19 

1        13 

4 

1        15 

1 

2 

11 

6 

49 

4 

1 

8 

4 

10 

0 

5 

10 

2 

20 

»        13 

11 

1        16 

0 

2 

12 

10 

50 

4 

4 

8 

4 

11 

2 

5 

12 

1 1 

21 

1        14 

7 

1        16 

9 

2 

M 

3 

51 

4 

7 

8 

4 

16 

8 

5 

15 

9 

22 

»        15 

4 

t        17 

7 

2 

15 

9 

52 

4 

10 

9 

5 

0 

0 

5 

18 

8 

23 

1        16 

0 

1        18 

5 

2 

16 

5 

53 

4 

14 

0 

5 

4 

0 

6 

1 

9 

24 

1        16 

9 

1        19 

3 

2 

18 

11 

54 

4 

17 

4 

5 

7 

1 

6 

5 

3 

25 

I        17 

7 

2           0 

2 

3 

0 

6 

55 

5 

0 

9 

5 

1 1 

7 

6 

9 

3 

26 

1        18 

5 

2           1 

3 

3 

2 

2 

56 

5 

4 

3 

5 

16 

0 

6 

12 

10 

27 

1        19 

4 

2          2 

3 

3 

4 

0 

57 

5 

8 

0 

6 

0 

6 

6 

i8 

1 1 

28 

2          0 

4 

2        3 

6 

3 

5 

6 

58 

5 

1 1 

6 

6 

5 

3 

7 

4 

6 

29 

2          1 

3 

2           4 

7 

3 

7 

2 

59 

5 

15 

2 

6 

10 

8 

7 

10 

9 

30 

2          2 

6 

2           6 

0 

3 

8 

1 1 

60 

5 

19 

1 

6 

16 

10 

7 

17 

7 

3» 

2        3 

7 

2           7 

5 

3 

10 

8 

61 

6 

3 

1 

7 

2 

7 

8 

5 

3 

32 

2           4 

10 

2           8 

10 

3 

12 

6 

62 

6 

7 

5 

7 

9 

1 

8 

13 

8 

33 

2          6 

3 

2        10 

6 

3 

14 

2 

% 

6 

1 1 

8 

7 

16 

1 

9 

2 

10 

34 

2           7 

9 

2        12 

3 

3 

16 

0 

64 

6 

16 

3 

8 

4 

1 1 

9 

12 

11 

35 

2           8 

7 

2        14 

2 

3 

17 

9 

65 

7 

0 

1 1 

8 

13 

0 

10 

3 

9 

36 

2        H 

3 

2        16 

3 

3 

19 

9 

66 

7 

6 

0 

9 

2 

1 

10 

^5 

3 

27 

2        13 

1 

2        18 

3 

4 

1 

9 

67 

7 

10 

10 

9 

12 

0 

11 

7 

9 

N.  B.  An  addition  of  twenty-two  percent 
military  perfons  ;  and  the  fmall  addition  o 
had  the  fmall-pox. 


computed  upon  the 
f  eleven  per  cent. 


premium ,  is  charged  upon 
upon  perfons  not  having 


The  court  of  direciors  have  a  difcretionary  power  of  fixing  the  premium, 

when  any  peculiar  hazard  attends  the  life  upon  which  the  aflurance  is  made, 
— Perfons  preferring  the  payment  of  a  grofs  fum  or  fmgle  premium  upon  an 
aflurance  for  any  certain  term,  are  chargeable  in  a  due  proportion  to  the 
annual  premium  for  fuch  term. — Every  perfon  making  any  affurance  with 
the  fociety  pays  five  {hillings  in  the  name  of  entrance  money  ;  and  if  the  fum 
affured  exceeds  one  hundred  pounds,  the  entrance  money  is  charged  after 
the  rate  of  five  {hillings  for  every  hundred  pounds. — Alfo  every  perfon 
propofing  any  alfurance  is  required  to  make  a  depofit  of  five  fliillings,  and 
in  cafe  the  fum  propofed  to  be  alfured  fiiall  exceed  one  hundred  pounds,  the 
depofit  will  be  increafed  after  the  rate  of  two  {hillings  and  fix-pence  for  every 
hundred,  which  depofit,  if  the  party  afterwards  declines  making  the 
alfurance,  or  neglefts  to  complete  the  fame  for  the  fpace  of  one  lunar  month, 
is  forfeited  to  the  ufe  of  the  fociety  ;   but  if  the  court  of  direftors  refufe  or 

decline  making  fuch   alfurance,  the  money  depofited  is  returned. 5.  The 

following  tables  exhibit  a  fpecimen  of  the  rates  of  annual  premiums  for 
affuring  either  a  grofs  fum,  or  an  equivalent  anmiity,  upon  the  contingency 

of 


204 


EQUITABLE     SOCIETY. 


of  one  life  furviving  another ;   and  alfo  of  a  certain  fum  payable  upon  the 

extinclion  of  either  of  the  two  joint  lives. 

A  Table  of  annual  premiums,  payable  during  the  joint  continuance  of  the 
lives  of  the  expeftant  and  pofTefTor,  for  infuring  one  hundred  pounds,  or  an 
equivalent  annuity,  if  the  life  in  expeftation  ^\7A\furvive  the  life  in  pofiefiion. 


Age 

Age 

One 

hunt 

red  ,1 

Age 

Age 

One 

hun 

^red 

of 

of 

P 

rcmium 

pounds 

,  or  annu-  (1 

ol 

of 

p 

remium 

pounds 

or  annu- 

Pof. 

Ex. 

iiy  of 

1 

Pof. 

Ex. 

ity  of 

lO 

20 

1 

12 

10 

8 

15 

0 

3" 

40 

2 

14 

0 

q 

2 

.5 

20 

10 

2 

2 

7 

7 

15 

8 

40 

30 

3 

12 

7 

8 

2 

10 

10 

30 

1 

12 

10 

9 

17 

3 

30 

50 

2 

12 

5 

9 

10 

10 

30 

10 

2 

17 

9 

6 

7 

3 

50 

30 

4 

17 

3 

7 

17 

10 

10 

40 

1 

13 

3 

9 

15 

10 

30 

60 

2 

10 

0 

11 

8 

6 

40 

10 

3 

17 

5 

6 

1 

0 

60 

30 

6 

12 

6 

7 

14 

10 

10 

50 

1 

12 

10 

9 

17 

0 

30 

70 

2 

5 

0 

15 

9 

5 

50 

10 

5 

2 

7 

5 

18 

8 

70 

30 

9 

6 

10 

7 

13 

3 

10 

60 

1 

11 

7 

12 

2 

5 

40 

40 

3 

8 

7 

9 

7 

10 

60 

10 

6 

14 

7 

5 

19 

5 

40 

5" 

3 

5 

3 

10 

8 

5 

10 

70 

1 

9 

3 

15 

17 

0 

50 

40 

4 

1 1 

0 

9 

6 

a 

70 

10 

9 

10 

6 

5 

16 

3 

40 

60 

3 

1 

6 

12 

9 

0 

520 

20 

2 

2 

7 

8 

10 

8 

60 

40 

6 

6 

10 

9 

1 

8 

20 

30 

2 

2 

7 

9 

^7 

2 

40 

70 

2 

15 

0 

17 

1 

3 

30 

20 

2 

16 

10 

7 

2 

0 

70 

40 

9 

1 

0 

8 

19 

8 

20 

40 

2 

2 

0 

9 

19 

8 

50 

50 

4 

5 

7 

10 

15 

3 

40 

20 

3 

16 

5 

6 

^5 

5 

50 

60 

3 

18 

6 

13 

7 

0 

20 

50 

2 

1 

6 

9 

19 

8 

60 

50 

5 

19 

8 

10 

^7 

8 

50 

20 

5 

2 

0 

6 

1 1 

8 

50 

70 

3 

9 

7 

17 

18 

10 

20 

60 

1 

19 

7 

12 

3 

10 

70 

50 

8 

15 

7 

10 

14 

0 

60 

20 

6 

16 

10 

6 

10 

5 

60 

60 

5 

10 

0 

13 

19 

3 

20 

70 

1 

16 

0 

17 

10 

10 

60 

70 

4 

M 

0 

19 

1 

8 

70 

20 

9 

8 

0 

6 

_ 

10 

5 

70 

60 

8 

5 

7 

14 

5 

0 

30 

30 

2 

14 

8 

1  8 

10 

2 

70 

70 

7 

6 

10 

19 

V 

0 

A  Tabic  of  annual  premiums,  payable  during  the  continuance  of  two  joint 
lives,  for  affuring  one  hundred  pounds,  to  be  paid  when  either  of  the  lives 
fhall  drop. 


Age 

Age 

£ 

5. 

<f. 

Age 

Age 

/^ 

5. 

d. 

10 

20 

3 

15 

8 

25 

70 

1 1 

7 

6 

30 

4 

10 

6 

3" 

40 

6 

6 

3 

40 
50 

5 

6 

10 
13 

10 

4 

50 
60 

7 
9 

9 

2 

8 
6 

60 

8 

10 

7 

70 

11 

12 

0 

70 

10 

19 

8 

35 

40 

6 

11 

7 

15 

20 

4 

0 

2 

50 

7 

»9 

0 

30 

4 

^5 

3 

60 

9 

5 

6 

40 

5 

15 

3 

70 

11 

16 

0 

50 
60 

7 
8 

1 
14 

2 
3 

40 

50 
60 

7 
9 

16 
8 

5 
6 

70 

11 

3 

5 

70 

11 

i6 

0 

20 

30 

4 

18 

10 

45 

50 

8 

3 

8 

40 

5 

18 

3 

60 

9 

14 

7 

50 
60 

7 
8 

3 
16 

0 

7 

50 

70 
60 

12 
9 

0 
18 

6 
0 

70 

11 

3 

6 

70 

12 

5 

0 

25 

30 

5 

2 

7 

55 

60 

10 

4 

10 

40 

6 

1 

6 

70 

12 

lO 

0 

50 
60 

7 
8 

5 
19 

■  3 

5 

60 
65 

70 
70 

13 
^3 

0 

16 

0 
0 

N.  B.     From  the  above    fpecimen,  which  fhcws  the  premium  for  every  tenth  year, 
the  reader  will  eafily  judge  of  the  proportional  premium  for  any  intermediate  age. 

6.  Every 


EQUITABLE     SOCIETY. 


205 


'■  '  6.  Every  perfon  defiling  to  make  afiurance  with  the  fociety  muft  fign 
a  declaration  by  himielf  or  agent,  fetting  forth  the  agCj  ftate  of  heakh, 
profeffion,  occupation,  and  other  circumftances  of  the  perfons  whofe  lives 
are  propofed  to  be  afTured,  and  alfo,  in  cafe  fuch  affurance  is  made  upon 
the  life  of  another  perfon,  that  the  mterejl  which  he  has  in  fuch  life  is  equal  to 
the  fum  alTured : — this  declaration  is  the  bafis  of  the  contraft  between  the 
fociety  and  the  perfon  defirous  to  make  fuch  affurance  ;  and  if  any  artlul, 
falfe,  or  fraudulent  reprefentation  fliall  be  ufed  therein,  all  claim,  on  account 
of  any  policy  fo  obtained,  fliall  ceafe,  determine^  and  be  void,  and  the 
monies  which  fhall  have  been  paid  upon  account  of  fuch  affurance,  fhall  be 

forfeited  to  the  ufe  of  the  fociety. 7.  Every  perfon  making  affurance  with 

the  fociety  becomes  a  member,  and  enters  into  a  covenant  that  he  will 
conform  to,  obferve,  and  keep  the  ftatutes,  by-laws,  rules,  orders,  and  ordi- 
nances of  the  fociety :  but  no  member  has  a  right  to  vote  at  a  general  court 
who  is  not  affured  in  the  fum  of  lool.  or  upwards,   upon  a  life   or  lives  for 

the  whole  continuance  thereof. 8.  The  bufinefs  of  the  fociety  is  condufled 

and  carried  on  by  fifteen  direftors,  annually  chofen  out  of  thofe  members, 
who  are  affured  with  the  fociety  in  the  fum  of  300I.  or  upwards,  upon  a  life 

or  lives  for  the  whole    continuance    thereof. -9.   Of  which   fifteen    one 

is  prefident,  and  two  are  vice-prefidents  of  the  fociety ;     and  five  direftors 

conllitute  a  court. 10.  The    direftors  from  time   to  time  nominate   five 

perfons  truftees  for  the  fociety,  to  execute  policies  and  take  fecurities  in  their 
names,    and  whenever  the   number   is    reduced   to  three,  new   truftees    are 

nominated. 11.  Mentions  the   names  of  the  directors. 12.  A  general 

court  for  the  eletlion  of  direftors  is  held  annually  upon  the  laft  Thurfday  in 
the  mondi  of  March,  or  within  forty  days  next  after,  at  which  court  ten  of 
the  then  direftors  are  to  be  continued  for  the  year  enfuing,  and  five  other 
members    of  the  fociety  are  to  be  choftn  and  admitted    into  the  number  of 

directors  in   the    room    of  five    who    are   annually   to   go   out. 13,  The 

direftors  ele6l  from  among  themfelves,   one  perfon  to  be  prefident  for  the 

year  enfuing. 14.  The  pvefident  nominates    two    of  the    direflors    vice- 

prefidcnts  to  aft  in  his  abfence. 15.  On  the  death  of  a  prefident,  another 

is    elcfted,  and    if  at  any   time    five   vacancies   happen  in   the   number   of 

direftors,  the  fame  are  filled  up  by  a    general  court. 16.  Four  general 

courts  are  held  in  each  year  (upon  the  firft  Thurfday  of  the  feveral  months  of 
March,  June,  September,  and  December)  and  as  many  more  a^s  the  prefi- 
dent, either  of  the    vice-prefidents,  any  five  of  the  direftors,  or  any  nine 

members  qualified  to  vote,  fiiall  think  neceffary. 17.  At  thefe  courts  are 

exhibited  accounts  of  the  ftate  of  the  affairs  of  the  fociety  ;  and  ftatutes,  bv- 
laws,  rules,  orders,  and  ordinances,  are  made  for  the  good  government 
thereof;  but  fuch  ftatutes,  by-laws,  rules,  orders,  or  ordinances,  are  not 
binding  until  they  have  received  the  approbation  of  the  two  fucceffive  general 

courts   of   the    fociety,  whether   quarterly    or    extraordinary. 18.    The 

premiums  of  affurance  are  from  time  to  time  vefted  in  the  public  funds. 

19.  If  any  premium  remains  unpaid  thirty  days  after  the  time  ftipulated  in 
the  policy,  fuch  policy  becomes  void  ;   but  if  the  defaulter  ftiall,  within  three 

3  E  calendar 


2oS  EQUITABLE     SOCIETY. 

calendar  months  after  the  time  fo  ftipulated  (the  perfon  on  whofe  life  the 
affurance  \vas  made  being  then  ahve  and  in  good  health)  pay  the  faid 
premium,  together  with  the  additional  fum  of  ten  (hillings  upon  every  lool. 
aflured  by  fuch  policy,  then  fuch  policy  is  revived  and  continues  in   force. 

20.  If  at  any  time  it  fliall  appear  to  a  general  court  of  the  fociety,  that 

the  premiums  received,  and  to  be  received,  will  not  be  fufficient  to  pay  the 
claims,  then  the  general  court  are  to  direfl  a  call  to  be  made  upon  the  feveral 
members  of  the  fociety,  in  proportion  to  the  fums  by  them  aflured,  for 
making  good  the   deficiency ;   for  which  call  credit  is  to  be  given,   and  the 

call  afterwards  to  be  repaid,  with  intereft,  at  the  rate  of  3  per  cent. 

21.  If  a  call  fliould  at  any  time  be  requifite  (which  is  highly  improbable)  the 
members  affured  for  a  fingle  year  will  be  rated  towards  fuch  call  in  the 
proportion  of  one  fixth  part,  and  the  members  affured  for  a  number  of  years 
certain,  in  the  proportion  of  two  third  parts  of  the  fum  charged  upon  the 
members  affured  for  the  whole  continuance  of  life,  for  every  lOol.  by  them 

refpeftivcly  affured. 22.  As  often  as  it  fhall  appear  to   a    general  court, 

that  the  flock  of  the  fociety  is  more  than  fufficient  to  pay  the  claims  liable  to 
be  made,  then  the  general  court  is  to  declare  a  dividend  of  the  furplus,  or  of 
fuch  part  thereof  as  fliall  be  judged  convenient,  amongft  the  members  of  the 
fociety  liable  to  contribute  towards  a  call  in  proportion  to  the  fums  in  which 
they  are  affured,  and  to  the  number  of  years  of  their  ffanding  in  the  fociety. 

23.  All  claimants,  upon  the  deceafe  of  any  perfon  whofe  life  fliall  have 

been  affured  by  the  fociety,  muff  make  proof  of  fuch  deceafe  and  claim, 
either  by  affidavit,  or  certificate,   or  by  both,   as  the  court  of  direftors  fhall 

think  requifite. 24.  The  time  for  payment  of  claims  accruing  by  death  is, 

in  cafe  a  death  happens,  in  the  firfl  year,  within  fix  calendar  months  after 
the  expiration  of  that  year  :  but  if  the  life  afiured  furvives  the  firfl  year,  then 
within  fix  calendar  months  after  proof  of  the  death  fhall  have  been  made, 

as  aforefaid. N.  B.     Perfons  who  fhall  make   affurance    for   annuities  to 

commence  upon  the  extinftion  of  the  life  affured,  inflead  of  grofs  fums  to  be 
paid  on  fuch  event,  are  not  liable  to  contribute  towards  a  call,  nor  entitled 

to  any  proportion  of  a  dividend. And  if  any  difficulty,  doubt,  or  con- 

troverfy  fliall  at  any  time  arife  in  the  fociety,  touching  the  management  or 
concerns  thereof,  the  matters  in  difpute  are  left  to  the  decifion  of  his  majeflv  s 
attorney-general,  and  folicitor-general,  and  the  fenior  of  the  king's  counfel 
praftifing  in  the  court  of  King's-Bench,  all  for  the  time  being ;  the  opinion 
of  the  major  part  of  whom,  on  a  cafe  fairly  flated  and  laid  before  each  of 
them,  is  final  in  determining  the  fame. 

2.  By  a  general  court  holden  on  Thurfday  the  7th  day  of  March  1771, 
the  court  of  directors  are  impowered  to  affure  either  a  grofefum,  or  an  annuity, 
to  be  paid  to  children  after  they  fliall  have  attained  an  age  affigned  : — alfo  to 
affure  cither  a  grofs  fum,  or  an  annuity,  if  a  life  on  which  the  afiurance  is 

made  fliall  be  fubfifiing  at  a  time  affigned. And  by  a  general  court  holden 

on  Thurfday  the  6th  of  June  1771,  the  court  of  direflors  are  impowered  to 
affure  annuities  for  a  life  or  lives  on  the  payment  of  a  grofs  fum  ; — fo  as  the 

amount 


EQUITABLE      SOCIETY.  207 

amount  of  any  annuity  or  annuities  to  be  granted  upon  any  one  life  do  not 
exceed  one  hundred  pounds : — and  towards  fecuring  the  payment  of  the 
feveral  annuities,  a  fund  is  referved  of  two  thirds  of  the  funis  originally  paid 
for  the  purchafe. 

3.  Every  member  of  the  fociety,  alTured  for  the  whole  continuance  of 
life,  has  a  rateable  interell  in  the  claim,  which  will  become  due  at  the  death ; 
and  this  intereft  increafes  in  value  yearly,  till,  at  the  extremity  of  life,  it 
amounts  to  the  fum  allured :  therefore  if,  through  unforefeen  misfortuneSj 
any  perfons  affured  with  the  fociety,  fliould  themfelves  (land  in  need  of  that 
afliftance  which  was  intended  for  their  furviving  families,  they  will  eafily  find 
a  purchafer  for  their  intereft  in  the  claim  ;  and  that  at  a  price  fo  much  greater, 
as  they  fhall,  at  the  time  of  alienation,  be  more  advanced  in  years  : — and  in 
order  to  defeat  any  fmifter  view,  and  to  prevent  thofe  unfair  advantages, 
which  under  fuch  circumftances  an  avaricious  purchafer  might  be  apt  to  take, 
the  fociety  will,  upon  application,  become  the  purchafers  of  fuch  an  intereft 

at  a  fair  price. A  court  of  direftors  is  held  every  Wednefday  at  eleven 

o'clock  precifely,  at  the  fociety 's  houfe,  near  Black-Friars-Bridge. 

4.  Remarks. — This  fociety,  if  due  care  is  taken,  may  prove  of  very  great 
public  benefit:  it  was  founded  in  confequence  of  propofals  which  had  been 
made,  and  leftures,  recommending  fuch  a  defign,  which  had  been  read  by 
Mr.  Dod/on,  the  author  of  the  Mathematical  Repofitory :  it  affures  any  fums 
or  reverfionary  annuities  on  any  lives,  for  any  number  of  years,  as  well  as 
for  the  whole  continuance  of  the  lives,  at  rates  fettled  by  particular  calcula- 
tion ;  and  in  any  manner  that  may  be  beft  adapted  to  the  views  of  the  perfons 
alfured :  that  is,  either  by  making  the  afl'ured  fums  payable  certainly  at  the 
failure  of  any  given  lives  ;  or  on  condition  of  furvivorlhip  ;  and  alfo,  either 
by  taking  the  price  of  the  affurance  in  one  prefent  payment ;  or  in  annual 
payments,  during  any  fingle  or  joint  lives,  or  any  terms  lefs  than  the  whole 
continuance  of  the  lives : — in  Ihort,  the  plan  of  this  fociety  is  fo  extenfive, 
and  fo  important,  that  I  am  perfuaded  the  gentlemen  concerned  in  the 
direftion  of  it,  will  not  think  the  following  obfervations  either  impertinent  or 

improper. Firft ;  they  fhould  confider  what  diftrefs  would  arife  from  the 

failure  of  fuch  a  fcheme  in  any  future  time  ;  and  what  dangers  there  are, 
which  ought  to  be  carefully  guarded  againft  in  order  to  fecure  fuccefs ; — for, 
thofe  perfons  will  be  moft  for  flying  to  thefe  eftablilhments,  who  have  feeble 
conftitutions,  or  are  fubjeft  to  diftempers,  which  they  know  render  their  lives 
particularly  precarious ;  and  it  is  to  be  feared,  that  no  caution  will  be  fuffi- 

cient  to  prevent  all  danger  from  hence. Again  ;  in  matters  of  chance,  it 

is  impoffible  to  fay,  that  an  unfavourable  run  of  events  will  not  come, 
which  may  hurt  the  beft  contrived  fcheme  : — the  calculations  only  determine 
probabilities ;  and  agreeably  to  thefe,  it  may  be  depended  on,  that  events 
will  happen  on  the  whole  :  but  at  particular  periods,  and  in  particular 
inftances,  great  deviations  will  often  happen ;  and  thefe  deviations,  in  the  early 
years  of  a  fcheme,  muft  prove  either  very  favourable  or  very  unfavourable. 

But 


2o8  EQUITABLE      SOCIETY. 

But   further ;   the   calculations   fuppofe,   that    all   the  monies   received 


are  put  out  immediately  to  accumulate  at  compound  interefl :  they  make  no 
allowance  for  lolles,  or  for  any  of  the  expences  attending  management : 
on  thefe  accounts,  the  payments  to  a  fociety  of  this  .kind,  ought  to  be  more 
than  the  calculations  will  warrant :  the  interefl  of  money  ought  to  be  reckoned 
low,  and  fuch  tables  of  obfervations  ufcd  as  give  the  higheft  values. — 
Mr.  Dodfon,  I  find,  has  paid  due  attention  to  all  this,  by  reckoning  interefl, 
in  his  calculations  for  this  fociety,  at  3  per  cent,  and  taking  the  lowefl  of  all 
the  known  probabilities  of  life,  or  thofe  deduced  from  the  London  bills  of 
mortality  : — there  is,  befides,  a  liberty  provided  of  making  a  call  on  all  the 
members,  in  cafe  of  any  particular  emergency :  it  is,  therefore,  highly 
probable,  that  this  fociety  (provided  too  much  money  is  not  fpent  in  manage- 
ment) muft  be  fecure. The  lall  expedient,  however,  w^ould  be  a  very 

difagreeable  one,  fhould  there  be  ever  any  occafion  for  having  i^ecourfe  to  it ; 
and,  in  order  to  guard  ftill  more  elfedually  againft  danger,  it  would  not,  I 
think,  be  amifs  to  charge  a  profit  of  3  or  4  per  cent,  on  all  the  payments. — 
Should  the  confequence  of  this  prove,  that  in  fome  future  period  the  fociety 
fhall  find  itfelf  poffeffed  of  too  large  a  capital,  the  harm  will  be  trifling,  and 
future  members  will  reap  the   advantage : — but  this  leads    me  to  make  an 

obfervatian  of  particular  confequence. As  this  fociety  is  guided  in  every 

inflance  by  flricl  calculation,  it  is  not  to  be  expefted  that  it  can  meet  with 
any  difiiculties  for  many  years  ;  becaufe,  not  till  the  end  of  many  years  after 
it  has  acquired  it's  maximum  of  members,  will  the  maximum  of  yearly 
claimants  and  annuitants  come  upon  it. — Should  it  therefore  through  inat- 
tention to  this  remark,  and  the  encouragement  arifing  from  the  poflefTion  of 
a  large  furplus,  be  led  to  check  or  flop  the  increafe  of  it's  flock  by  enlarging 

it's  dividends  too  foon,  the  confequences  might  prove  pernicious. Again ; 

I  would  obferve,  that  it  is  of  great  importance  to  the  fafety  of  fuch  a  fociety, 
that  it's  affairs  fiiould  be  under  the  infpeclion  of  able  mathematicians ; 
melancholy  experience  fhews,  that  none  but  mathematicians  are  qualified  for 
forming  and  conducting  fchemes  of  this  kind  : — in  fhort,  dangerous  miflakes 
may  fometimes  be  committed,  if  the  affairs  of  fuch  a  fociety  are  not  managed 
frugally,   carefully,   and   prudently  :    one    inflance   of  this  I   cannot   avoid 

mentioning. A  perfon  who  defires  to  affure  a  particular  fum,  to  be  paid 

at  the  failure  of  his  life,  on  condition  of  the  furvivorfliip  of  another  life, 
may  chufe  to  pay  the  value  in  annual  contributions  during  the  continuance 
of  his  own  fingle  life,  rather  than  during  the  continuance  of  the  joint  lives, 
becaufe  the  annual  contributions,  in  this  cafe,  ought  to  be  much  lefs : — but 
a  fociety  that  would  praclife  fuch  a  method  of  aflurance,  would  hurt  itfelf; 
for,  as  foon  as  the  life,  on  whofe  furvivorfliip  the  affurance  depends,  is 
extinft,  the  perfon  affured,  if  then  living,  would  have  no  longer  any  benefit 
in  view ;  and  therefore  would  make  his  payments  with  reluclance,  and  in 
time,  perhaps,  entirely  withdraw  them  ;  the  confequence  of  which  would  be, 
that  the  fociety  would  fufter  a  lofs  by  being  deprived  of  the  jufl  value  of 
the  expeftation  it  had  granted. — The  plan  of  a  fociety  ought  always  to  be 
fuch,  as  that  the  loffes  arifing  from  difcontinuance  of  payment,  fhould  fall 

on 


ESTIMATE.  009 

on  the  purchafer,  and  never  on  the  fociety. 1  mufl  not  forget  to  add. 

that  it  is  neceffary,  that  fuch  a  fociety  fhould  be  furniflied  with  as  complete 
a  fet  of  tables  as  poffible  :  this  will  render  the  bufinefs  of  the  fociety  mucli 
more  eafy,  and  alfo  much  more  capable  of  being  condufied  by  perfons 
unfkilled  in  mathematics  :  it  will  alfo  contribute  much  to  it's  fafety :  for  in 
all  cafes  to  which  tables  can  be  extended,  there  would  be  no  occafion  for 
employing  any  calculators  ;  and,  confequently,  a  danger  would  be  prevented, 
to  which,  though  it  is  not  now,  it  may  hereafter  be  expofed ;  I  mean  die 
danger  of  happening  to  truft  unfkilful,  or  carelefs  calculators. — Mr.  DodfoUf 
I  find,  has  furniflied  this  fociety  with  fome  important  tables  ;  and  his  fltill 
was  fuch,  that  there  is  no  reafon  to  doubt,  but  they  may  be  depended  on  : 
they  have  alfo  others  which.  I  believe,  are  fafe  and  accurate :  but  there  are 
fome  flill  wanting  which  fhould  be  fupplied  ;  and  all  fhould  be  fubje6led  to 
the  examination  of  the  befl  judges,  and  afterwards  publifhed,  together  with 
a  minute  account  of  the  principles  affumed,  and  the  method  taken  in 
compofing  them :  fuch  a  publication  would  be  a  valuable  addition  to  this 
part  of  fcience  ;  and  it  would  alfo  be  the  means  of  increafing  and  eftablifhing 

the  credit  of  the  fociety. Dr.  Price  has,  with  a  particular  view  to  this 

fociety,  given  rules,  by  which  may  be  formed  every  table  it  can  want,  for 
fliewing  the  values  of  affuranccs  on  the  xchole  duration,  or  any  terms,  of  any 
one  or  tico  lives,  in  all  pofTible  cafes  ;  and  nothing  but  care  and  attention  can 
be  neceffary  to  enable  any  good  arithmetician  to  calculate  from  them. 
Perhaps,  this  may  be  as  much  bufinefs  as  any  one  fociety  fhould  undertake. 
— Rules,  however,  for  finding  the  values  of  affurances,  in  mofl  cafes,  where  the 
whole  duration  of  any  three  lives  is  concerned,  may  be  found  in  Mr.  Simpfons 
Scleti  Exercifes,  from  page  299  to  307  ;  and  it  is  not  pofliible  they  fliould 
follow  a  better  guide. 

5.     See   Amicable  Society,     Hand-in- Hand    Fire-OJice,     Lives,     Society, 
Union   Fire- Office. 

EQUITY. 

tj        See  Prelim.  Difc.  33.   Chancery,   Civil  Lazo,   Lazo  and  Lawyers,   Precedent, 

Society,    Truji. 


\ 


ERASEMENT. 

See   Alteration,   Cancelling,   Fraud. 

E     S     T     I     MATE. 

1.  T  N  cafe  of  any  damage  to  the  fhip  itfelf  and  it's  apparel,  before  any  repair 

^  K  begun,  it  fliall,  according  to  the  proper  nature  thereof,   be  furveyed 

and  eflimated,  by  a  creditable  fhip-builder,  rope-maker,  and  fail-maker,  and 

3  F  likewife 


210  EVIDENCE. 

likewife  by  fome  fkilful  mafters  prefent  at  the  place  where  the  misfortune 
happened  ;  in  the  want  of  fuch  perfons,  others  of  good  charafter  and  expert 
in  fuch  matters  Ihall  be  defired  to  draw  up  and  fign  a  juft  valuation,  which 
muft  be  confirmed  by  a  fentence  of  the  neareft  magiflracy  or  other  competent 
tribunal,  according  to  the  ufage  of  each  place. — Ordin.  of  Stockh. 

2.     See  Certificate,   Damage,   Enemy,   Repair,   Valuation. 
EVENT. 

1.   T>  Y  Stat.  gAnn.  c.  6.  f.  57. — Every  perfon  who  (hall  fet  up  any  office 
-tJ  for  making  afllirances  on  marriages,  births,  chriflenings,  and  fervice, 
ftiall  forfeit  500I.  &c. 

2.  By  Stat.  1,4  Geo.  3.  c.  48. — All  infurances  on  lives,  or  any  other  event 
or  events;  whatfoever,  are  void,  except  for  the  value  of  the  interejl  of  the 
infured  therein,  and  unlefs  the  name  of  the  perfon  or  perfons  who  are  to  be 
beaefited  by  fuch  infurance  be  inferted  in  the  policy. 

Q.  Insurance  or  wager  may  not  be  done  upon  the  acquifition,  the  lofs, 
or  alterations   of  any  dominions,   ftates,    kingdoms,    provinces,    dukedoms, 

cities,  diftricls,  and  pbces. Neither  may  they  be  done  upon  the  fuccefsful 

or  unfortunate   ifTue   of  the  enterprifcs  of  an  army  or  fleet,  nor  upon  their 

arrival  or  departure,  nor  upon  the  taking  or  defence  of  any  place. They 

ihall  neither  be  made  upon  certain  marriages,  whether  they  will  be  concluded 
or  not,   nor  upon  the  delivery  of  women,  or  the  arrival  and  departure  of 

fliips,  &c. They  fliall  not  be  made  upon  the  plague's  or  a  war's  being 

impending,  or  not,  nor  upon  the  eleftion  of  the  Doge,  or  the  fenators  of  the 
republic,  nor  upon  any  thing  elfe  that  may  have  the  appearance  of  a  depofit, 

aflurance,   or  wager,  all  things  of  that  fort  being  abfolutely  prohibited. 

Thofe  that  aft  contrary  to  the  faid  regulations,  fhall  be  fined  every  time  for 
the  fum  aflured,  depofited,  or  betted,  and  the  brokers  employed  therein  (hall 
pay  the  fame  fine  as  the  offenders. — Ordin.  of  Genoa. 

4.  No  infurances  are  to  be  allowed  on  uncertain  and  precarious  things  ; 
or  imaginary  and  fuch  kind  o^ profit,  or  on  the  men's  lives,  except  for  ran- 
foming  from  Turks  and  pirates. — Ordin.  of  Copenh. 

^.  See  Prelim.  Difc.  ^6.  Alteration  of  Policy  Voyage  or  Rifijue,  Bankrupt, 
Bargain,  Inierefi  or  no  Interefi,   Lives,  Profit,  Wager,  War. 

EVIDENCE. 

1.  /^ASE. — In  an  aftion  brought  on  a  policy  of  infurance  of  a  fiiip,  the 

V^  fliip  had  been  condemned  by  the  court  of  admiralty  in  Carolina,  and 

the  afts  of  condemnation  given  to  the  captain  were  fince  lofl  by  bad  weather 

at 


EVIDENCE. 


211 


at  Tea,  and  the  queftion  was,  whether  the  captain  might  give  ^^rro/ evidence 
of  the  reafon  that  court  went  on  in  condemning  the  fliip. — Lord  Hardwicke 
Avould  not  fufFer  it  to  be  done,  for  the  rule  is,  that  you  cannot  give  evidence 
of  written  evidence  that  may  be  produced,  without  fliewing  that  it  is  loft ; 
but  what  was  here  loft,  was  only  a  copy  of  the  evidence,  and  if  you  thought 
it  material,  you  ftiould  have  the  proceedings  themfelves  here,  and  not  give 
parol  evidence  of  what  they  were. — Cafes  Temp.  Lord  Hardwicke,  304.  Trin. 
9  Geo.  2. — Bliedjlyn  v.  Sedgzvick. 

2.  Case. — In  an  aftion  brought  on  a  policy  of  infurance  of  a  fliip ;  a 
witvu'fs  for  the  defendant  proved  a  deviation ;  to  difcredit  which  witnefs,  the 
plaintiff  offered  to  give  in  evidence,  an  examination  on  oath  of  this  man 
before  the  mayor  of  the  town  where  they  got  on  ftiore,  wherein  they  faid  he 
fwore  othcrwife  ;  this  examination  was  figned  by  the  mayor,  but  not  by  the 
witnefs  nor  any  of  thofe  who  were  fuppofed  to  have  made  oath : — but  Lord 
Hardwicke  would  not  let  it  be  read,   for  no  examination  ftiall  be  read,  unlefs 

figned  by  the  party. — Cdfes  Temp.    Lord  Hardzoickc,    306.  Trin.    9  Geo.  2.— 
Tircman  v.  Henwell. 

3.  Case. — If  a  witnefs  going  to  fea  be  by  rule  of  court  examined  on 
interrogatories  before  a  judge,  and  the  trial  comes  on  before  he  is  gone,  his 
depofition  fliall  not  be  read,  but  he  muft  appear ;  for  the  rule  was  made  on  a 
prefumption  of  his  abfence. — Ano7i. — Eaft.   13  W.  3.  2  5^//^.  691. 

4.  Remark. — In  almoft  all  controverted  cafes  between  infurers  and 
infureds,  the  latter  have  always  greatly  the  advantage  of  the  former,  with 
refpeft  to  the  power  of  bringing  forth  evidence  ;  becaufe  generally  all  the 
fafts,  intelligence,  papers,  &c.  which  in  any  wife  relate  to  fuch  cafes,  and  the 
feveral  perfons  who  may  be  able  to  prove  thofe  fafts,  &c.  are  in  the  know- 
ledge and  reach  of  the  infureds  or  their  agents,  to  produce  or  fupprefs,  as 
may  beft  fuit  their  purpofe  : — but  it  is  often  very  difficult,  and  fometimes 
impracticable,  for  the  infurers  to  get  at  them,  fo  as  to  eftablifti  effeftual  and 
legal  proof,  even  where  palpable  fraud,  impofition,  and  concealment,  appear 
on  the  very  face  of  the  tranfaclions. 

5.  See  Prelim.  Difc.  18,  32,  33.  Alteration  of  Policy  Voyage  or  Rifque, 
Barratry,  Broker,  Concealment,  Condemnation,  Date,  Deceit,  Document,  Intel- 
ligence, Laziu  Premium,  Proof,  Property,  Salvage,  Warranty. 


^M 


FACTOR, 


F. 


FACTOR. 

1.       A     GENTS,  faftors,  or  correfpondents,  being  in  pofTefTion  either  of 

r\     general  or   fpecial  orders,  from  the  proprietors   of  fhips,  goods, 

&c.   to  make  infurance  thereon  ;    nay,  if  they  have   received  no 

fuch   orders,    yet,    if  they   have    advanced   money,    or   accepted   bills,   on 

account  of  fuch  fhips,  or  goods,  they  have  an  undoubted  right  to  infure  the 

fame,  in  behalf  of  the  proprietors. "  Admiferim  etiam  eos  homines,  quos 

faftoors  folemus  appellare,  quin  &,  quod  magis  eft,  etiam  negotiorum 
geftorem  admiferim  ;  quid  enim  is  in  re  amici  fui  non  verfetur  ex  prudentia, 
quam  aflidui  patres-familias  adhibent  in  fua  ?  fi  negligat,  non  aufim  eum  a 
culpa  levilTima  abfolvere." — BynkcrJJioek,  Qucejl.  Jur.priv.  lib.  4.  c.  1. 

2.  Case. — A  fa6tor  has  a  lien  on  goods  configned  to  him,  not  only  for 
incident  charges,  but  as  an  item  of  mutual  account,  for  the  general  balance 
due  to  him,  fo  long  as  he  retains  the  pofTelfion  ;  but  if  he  parts  with  the 
pofTeflion  of  the  goods,  he  parts  with  his  lien ;  becaufe  it  then  cannot  be 
retained  as  an  item  of  the  general  account. — Krufer  &  al.  v.  Wilcox  &  al. — 

Gardiner  v.   Coleman. — In  Chan. So  that  a  faftor,  or  agent,  as  making 

infurance  on  the  principal's  account,  is  entitled  to  recover. — Lord  Mansfield, 
in  Godin  &  al.  v.  Lond.  AJf.  Co. 

3.  See  Agent,  Broker,  Claim,  Doubk-Infurance,  Order,  Proprietor,  Trujlec. 

FIRE. 

1.  T  N  London,  infurances  from  fire  are  obtainable  at  fuch  eafy  rates,  that 
-*-  there  are  few  merchants  but  chufe  to  be  infured  for  their  own  quiet : 
befides,  this  precaution  adds  to  their  credit  both  at  home  and  abroad,  when  it  is 
known  that  the  great  capitals  lying  in  their  houfes  and  warehoufes  are  thus 
fecured  from  the  flames. — Here,  the  premium  on  brick  houfes,  or  on  goods 
lodged  in  brick  houfes,  is  but  2s.  on  each  lool.  to  the  value  of  i,oool.  and 
2s.  6d.  on  each  lOol.  to  the  value  of  2,oool.  and  fo  on,  except  where  hazardous 
trades  arc  carried  on  ;  fuch  as  fugar-rcfiners,  dillillers,  and  chandlers  -,    or  on 

dangerous 


FIRE.  213 

dangerous  commodities,  as  hemp,  flax,  &c.  as  will  appear  by  the  propofal<; 
and  policy  of  the  London-Aflurance  company,  which  has  taken  a  very  good 
and  neceflary  precaution,  by  inferting  the  condition,  that,  whenever  any 
lioufes  are  burnt,  "  it  fliall  be  at  the  company's  option,  either  to  pay  the  lofs,- 
or  rebiuid  them ;"  for  this  takes  away  the  temptation  from  all  infured 
leafeholders  of  deflroying  their  houfes,  as  the  landlords,  and  not  they,  would 
in  fuch  cafe  be  benefited  by  it : — and  it  is  a  fimilar  good  difpofition,  that 
when  goods  are  burnt,  the  infurers  have  it  in  their  choice,  either  to  make  a 
pecuniary  fatisfaftion,  or  to  repair  the  damage  by  a  quantity  of  merchandife, 
equal  in  kind,  value,  and  goodnefs  to  thofe  damnified,  or  loft ;  which 
eftetlually  prevents  any  iniquitous  people  (who  may  have  a  parcel  of  goods 
on  hand  greatly  fallen  in  price)  from  fetting  them  on  fire,  in  expeftation  of 
recovering  from  the  infurers  what  they  coft. — However,  as  in  London  fome 
have  malicioufly  fet  fire  both  to  houfes  and  merchandife,  no  perfon  fliould 
ever  relent  the  ftricleft  enquiry  being  made  into  the  calamity  ;  but  a  general 
miftruft  in  this  particular  ought  to  be  efteemed  needful,  fince  it  is  for  the 
public  good  that  delinquents  be  difcovered,  and  brought  to  juftice  :  and 
where  any  grounds  of  fufpicion  appear,  it  is  not  doubted  but  both  judge  and 
jury  will  carefully  examine  into,  and  canvafs  the  affair  on  a  trial,  that  incen- 
diaries may  receive  the  punilhment  due  to  their  atrocious  crime  ;  and  not 
condemn  the  infurers  to  pay  on  fuch  flight  evidence,  as  they  often  are  in 
marine  cafes  : — on  the  other  hand,  it  feems  clear  that  the  corporations  of 
infurance  may  often  blame  thcmfelves,  for  too  eafily  admitting  and  under- 
writing of  policies  on  houfliold  goods,  and  wearing  apparel,  from  perfons 
quite  unknown. — ^1  Mag.  31. 

2.  Insurances  from  fire  are  introduced  into  feveral  countries,  though 
not  every  where  under  that  denomination  :  at  Humburgh  there  is  ?Ljire-  cnj/ci 
of  an  old  ftanding,  wherein  the  principal  houfes  are  infured  at  the  value  of 
15,000  marks  (which  is  about  i.oool.  flerling)  to  be  paid  in  cafe  of  their  being 
burnt ;  the  infured  paying  yearly  one  fourth  of  a  mark  for  every  thoufand 
marks,  for  expences  :  every  one  concerned  in  this  office,  or  fire  cafla,  contri- 
butes to  a  lofs  in  proportion  to  what  his  own  houfe  ftands  infured  for ;  but  no 
lioufe  is  valued  at  more  than  15,000  marks,  though  it  may  have  coft  ten  times 
that  fum  in  building: — we  can  account  for  this  limitation  no  otherwife,  than 
by  fuppofing  the  intention  of  the  legiflature  to  have  been  to  curb  by  this 
valuation  the  pride  of  the  citizens,  and  hinder  them  from  being  too  magni-- 
ficcnt  in  their  buildings  ;  a  very  wife  maxim  certainly  in  a  trading  city  !  it 
remains  ho^vever  with  us  worthy  of  confidcration,  whether  the  government 
of  that  city  fliould  not  admit  of  infurances  to  be  made  on  a  greater  value 
than  15,000  marks,  becaufe  the  price  of  labour  and  materials  is  fo  much 
increafed  fince  that  regulation  :  we  murt  hint  likewife,  that  it  is  not  a  little 
lurprifing  that,  in  fo  populous  and  fine  a  place  as  Hamburgh  is,  an  infurance 
on  merchandife  from  fire  has  not  been  fettled,  either  by  their  fire  cafla,  or 
fome  other  fociety,  fince  the  rifque  there  cannot  be  judged  fo  great  as  elfe- 
where,  by  reafon  of  the  vaft  plenty  of  water,  and  the  difpofitions  they  have 
mj^de  for  cxtinguifliing  of  fires. — Ibid. 

3  G  3.    Case. 


214  FIRE. 

3.  Case. — Mary  Stroad  having  an  interefl;  in  Tome  houfes  in  London,  for 
the  remainder  of  a  term  of  which  above  five  years  were  to  come,  infured  the 
fame  from  fire,  by  a  poHcy  of  infurance  entered  into  by  the  Hand-in- Hand 
company  for  infurances  of  houfes  from  fire ;  which  infurance  was  made  for  a 
term  of  feven  years,  and  a  premium  paid  accordingly  : — it  happened  that 
after  the  end  of  the  five  years,  and  before  the  end  of  the  feven  years,  the 
houfes  were  burnt  down ;  after  which  Mary  Stroad  ajjigned  the  pohcy  to  the 
fadler's  company,  who  were  entitled  to  the  houfes  after  the  determination  of 
the  term  of  Mary  Stroad  : — this  bill  was  brought  by  the  plaintiffs  againfl; 
the  infurance  company,  to  have  this  infurance  made  good,  infilling  thereon, 
by  reafon  that  a  premium  was  paid  to  the  company  for  the  whole  feven 
years,  within  which  fpace  of  time  this  accident  hath  happened  ;  and  as  this 
infurance  is  exprefsly  to  Mary  Stroad,  her  executors,  adminiftrators,  and 
afiigns,  that  the  plaintiffs,  as  her  affigns,  are  Avell  entitled  to  have  the  policy 
made  good. — It  was  urged,  that  this  infurance  company  being  an  amicable 
fociety,  who  infure  each  other  with  a  joint  ftock,  and  the  plaintiffs  being,  as 
affignees  of  Mary  Stroad,  members  of  the  fociety,  was  the  reafon  for  feeking 
relief  by  bill  in  equity,  and  not  purfuing  a  remedy  at  law,  in  regard  that 
no  aClion  would  lie ;  for  that  the  plaintiffs  by  Handing  in  the  place  of 
Mary  Stroad,  might  be  faid  to  be  part  of  the  fociety,  and  therefore  could 
not  profecute  an  aftion  againft  themfelves. — For  the  defendant  it  Avas  infifi;ed, 
that  the  intent  of  thefe  policies  is  only  to  infure  fome  certain  inter ejl  in  the 
party  infured  from  lofs  or  damages,  and  that,  when  fuch  intereft  ceafes,  the 
infurance  is  at  an  end  :  it  was  alfo  infilled  to  be  an  ancient  rule  of  the  fociety, 
that  no  perfon  fliould  be  permitted  to  infure  for  lefs  term  than  feven  years, 
and  that  fubfequent  to  the  plaintiff's  infurance,  an  order  of  the  company  was 
made,  reciting,  that  whereas  "  all  infurances  by  the  rules  of  die  company, 
were  to  ceafe  with  the  interefl;  of  the  affured,  yet  that  the  infurers  might 
affign  their  policies  :" — this  order  was  infifted  upon  as  evidence,  to  fliew,  that 
by  the  rules  of  the  company,  they  are  anfweiable  for  no  lofs  or  damage 
happening  by  fire   to  the  houfes  infured,  after  the  interefl  of  the  affured  is 

determined : in  this  company,  as  in  all  other  infurance  companies,  there 

is  a  rule  that  the  policy  fhould  be  of  no  effeft,  if  affigned,  unlefs  brought  to 
be  allowed  by  the  company  within  fuch  a  time ;  but  it  was  admitted,  that  the 
plaintiffs  had  tendered  the  affignment  to  the  company,  within  the  time  for 
fuch  allowance,  but  they  had  refufed  it. — In  regard  to  the  order  made,  that 
all  affurances  were  to  ceafe  with  the  intereft  of  the  affured,  Lord  Chancellor 
Hardwicke  faid,  the  affured  were  to  be  confidered  in  a  double  capacity,  as 
members  of  the  company,  and  as  perfons  contrafting  with  them  ;  and  that  if 
the  cafe  depended  upon  this  order,  he  Ihould  not  think  the  company,  in  their 
general  capacity,  could  vary  or  alter  any  contraft  made  by  them  to  their 
individual  members :  but  that  he  was  of  opinion,  from  the  nature  of  alt 
infurances,  that  the  affurance  mufl;  ceafe  with  the  intcrcjl  of  the  affured,  for  it 
is  only  to  fave  from  damage  in  the  thing  infured  ;  and  where  it  is  to  infure 
damages  from  fire,  how  can  the  infurers  enter  upon  the  premifes  to  rebuild 
or  repair  when  the  eflate  of  the  afiured  is  determined  P — An  infurance  implies 

an 


I 


FIRE.  215 

ah  interejl  in  the  thing  infurcd :  if  it  were  otherwife,  many  ill  confequences 
might  follow :  men  might  infure  houfes  of  ftrangcrs,  and  in  hopes  of  getting 
the  money  infured,  fet  their  houfes  on  fire : — and  though  in  cafes  of  com- 
merce, policies  of  infurance  are  allowed  to  be  made,  interejl  or  no  interejl, 
yet  it  was  long  before  this  could  prevail,  and  was  allowed  only  in  refpeft 
that  goods  might  be  infured  in  a  commerce  which  is  prohibited  in  ^Joreio-n 
country,  and  to  prevent  (in  regard  to  the  advantage  of  the  trade  to  this 
kingdom)  a  difcovery  of  the  nature  of  the  goods,  and  thereby  laying  open 
the  owners  in  fuch  foreign  country  to  the  penalty  for  trading  in  fuch  goods : 
that  although  fuch  policies  are  now  allowed,  yet  he  remembered  them  much 
queflioned  and  called  fraudulent ;  but  no  fuch  reafon  holds  in  the  cafes  of 
infurances  of  houfes  from  fire,  and  in  which  infurances  all  fuppofe  an  interejl 

in  the  affured : in  the  cafe   of  Lynch  and   Dalzel,   which  was  before  the 

houfe  of  lords,  in  March  1729  (3  Brozuns  Pari.  Cafes,  497.)  one  Ireland 
being  entitled  to  the  remainder  of  a  long  terra  of  years  in  a  houfe  at  Gravefend, 
caufed  the  fame  to  be  infured  from  fire,  in  the  Sun-Fire-OJfice,  and  the  infu- 
rance was  to  him,  his  heirs,  executors,  adminiftrators,  and  afhgns :  Ireland 
dying,  his  fon  and  executor  agreed  with  the  appellant  to  fell  and  alhgn  to 
him  this  houfe,  together  with  the  benefit  of  the  policy  for  the  infurance  of  the 
houfe  :  the  leafe  of  the  houfe  was  accordingly  affigned,  but,  there  being  no 
ajjignment  of  the  policy  prepared,  that  was  only  delivered  up,  and,  in  faft, 
not  aifigncd ;  but  Ireland  promifed  to  execute  an  affignment  of  it  to  the 
appellant  at  any  time  after  :  but  before  the  policy  was  affigned,  the  houfe 
was  burnt  down,  and  a  bill  was  brought  in  this  court  by  the  appellant  to 
compel  the  company  to  pay  the  money  infured  by  the  policy,  and  the  bill 
was  difmilfed  by  Lord  Chancellor  King,  and  his  order  affirmed  by  the  lords. 
— Lord  Chancellor  faid,  that  he  was  counfel  in  the  caufe,  and  that  the  reafons 
upon  which  Lord  Chancellor  King  difmiffed  the  bill  appear  in  the  reafons 
mentioned  in  the  refpondent's  cafe  :  that  thefe  policies  are  not  infurances 
of  the  things  themfelves  mentioned  to  be  infured,  for  nobody  can  warrant 
againll  accidents  ;  nor  do  fuch  infurances  attach  on  the  thing,  or  in  any 
manner  go  with  it,  as  incident  thereto,  by  any  conveyance  or  affignment  of 
the  thing  infured  :  but  the  infurances  are  only  fpecial  agreements  with  the 
perjons  infuring  againft  fuch  lofs  and  damage  as  they  flTail  fuflain,  and  the 
party  infuring  muft  have  ?i  property  at  the  time  of  the  iof?;,  or  he  can  fuflain 
no  lofs,  and  confequently  be  entitled  to  no  fatisfaftion.  Lord  Chancellor 
obferved,  that  this  cafe  was  rather  ftronger  than  the  prefent,  but  difmiffed 
the  bill  only  without  coAs. — Did.  Tr.  and  Com.  147.  In  Chan.  16  Geo.  2.—^ 
Sadler  s  Covip.  v.  Badcock. 

4.  Cask. — This  was  an  aftion  of  covenant  againfl  the  defendants  upon 
a  policy  of  infurance  of  a  malting-oflfice  of  the  plaintiff  at  Norwich  from 
lire,  in  which  policy  there  was  a  provifo  that  "  the  corporation  fhall  not  be 
liable  in  cafe  the  fame  fliall  be  burnt  by  any  invajion  by  foreign  enemies,  or 
an)'  military  or  ujurped  power  whatfoever:" — and  the  plaintiff  in  the  decla- 
ration averred  that,  on  the  28th  of  September  1766,  the  faid  making-office 

was 


2i6  F        I        R        E. 

was  burnt  not  by   any  invafion  by   foreign    enemies,    or   any    military    or 
ufurped  power  whatlbever,    and  that  defendants  have  not  kept  their  cove- 
nant, to  the  plaintilf's -damage : — the   defendants  plead,   ift,  the  general  iifue, 
that  they  have  not  broke  their  covenant,  and  thereupon  ifl'ue  is  joined  ;    2dly, 
that  it  was  burnt  by  an  u/iirpcd  power  : — the  plaintiff  replies,  that  it  was  not 
burnt  by  an  ufurped  power,  and  thereupon  iilue   is   alfo  joined  : — diis  caufe 
was  tried  at  Norwich  alfizes,  verditl  for  the  plaintiff,  and  469I.   damages, 
fubjeft  to  the  opinion  of  the  court   upon  the  following  cafe  ;  viz.  That  upon 
Saturday  the  2  7ih  of  September  lafl,  a  viob  arofe  at  Norwich  upon  account 
of  the  high  price  of  provifions,  and  fpoiled  and  deflroyed  divers  quantities  of 
Hour  ;  thereupon  the  proclamation  was  read,  and  the  mob  difpcrfed  for  that 
time  ;    afterwards  another  mob   arofe,   and  burnt  down  the  making-office  in 
the  policy  mentioned ;  the  quellion  is,   whether  the   plaintiff  is  entitled  to 

recover  in  this  action  ? This  cafe  was  twice  argued  at  the  bar,   and  after 

time  taken  to  confider,  Mr.  Juftice  Gould  was  of  opinion,  that  the  making- 
office  being  burnt  by  the  mob  who  rofe  to  reduce  the  price  of  provifions,  the 
fame  was  burnt  by  an  ufurped  poivcr,  within  the  true  intent  and  meaning  of 
the  provifo  in  the  policy  ;  that  it  is  an  ufurped  power  for  any  perfons  to 
aflemble  themfelves,  to  alter  the  laws,  to  fet  a  price  upon  vicluals,  &c. — he 
cited  Poph.  122.  where  it  is  agreed  by  the  juflices  that  to  attempt  fuch  a 
thing  by  force  is  felony,  if  not  treafon  ;  and  therefoi^e  he  was  of  opinion  that 

judi?mcnt  ought  to  be   for   the    defendant. Mr.  Jullice  Bathurfl  was  of 

opinion  that  the  words  "  ufarped  poxoer,''  in  the  provifo,  according  to  the 
irue  import  thereof  and  ,the  meaning  of  the  parties,  can  only  mean  an  invafion 
of  the  kingdom  by yc>ra|g"n  (Enemies  to  give  laws  and  ufurp  the  government 
thereof,  or  an  internal  armed  force  in  rebellion,  afTuming  the  power  of 
government,  by  making  laws,  and  punifliing  for  not  obeying  thofe  laws  ; — 
lie  faid,  tlie  plea  alleges  the  making-office  was  burnt  by  an  ufurped  power 
unlawfully  exercifed,  but  does  not  charge  that  ufurped  power  as  a  rebellion  ; 
that  a  mob  rofe  at  Norwich  on  account  of  the  price  of  viftuals,  and  as  foon 
as  the  proclamation,  was   read  they  difperfcd  ;    fo  he  was  of  opinion  that 

■judgnient  ought  to  be  given  for  the  plaintiff. Clive,  Juflice,  was  of  opinion 

that  the  words  ufurped  pocoer  in  the  provifo,  mufl  mean  fuch  an  ufurped 
power  as  amounts  to  high  treafon,  which  is  fettled  by  the  25  Edw.  3  ; — that 
the  offence  of  the  mob  in  the  prefent  cafe  was  a  felonious  riot  for  \\hich  the 
individuals  might  have  fuffered,  but  cannot  be  faid  to  be  an  ufurped  pov»-er  ; 
therefore  he  was  of  opinion  that  judgment  fliould  be  given  for  the  plaintiff. 
— — Wilmot,  Chief  Juflice  :  upon  the  befl  confideration  I  am  able  to  give 
this  cafe,  1  am  of  opinion  that  the  burning  of  the  making-office  was  not  a 
burning  by  an  ufarped  poiecr  within  the  meaning  of  the  provifo  ; — policies  of 
infuyauce  like  all  other  contracts  mufl  be  conftrued  according  to  the  true 
2/z/<??i/^'o?i  of  the  parties ;  although  the  counfel  on  one  fide  faid  that  policies 
ought  to  be  conflrued  liberally;  on  the  other  fide  that  they  ought  to  be 
cpnllrued  flricUy :  in  a  doubtful  cafe  I  think  the  turn  of  the  fcale  ought  to  be 
.given  againfl  the  fpeaker,  bccaufe  he  hath  not  fully  and  clearly  explained 
himfclf :  the  imperfe6tion  and  poverty  of  language  to  cxprefs  our  ideas,  is 

the 


FIRE.  217 

the  occafion  that  -^'ords  have  equivocal  meanings,  and  it  is  often  very  uncer- 
tain what  the  parties  to  a  contra6l  in  writing  mean :  when  the  ideas  are 
fimple,  Words  exprefs  them  clearly,  but  when  they  are  complex,  difficulties 
often  arife,  and  men  differ  much  what  ideas  are  occafioned  by  words. — In  the 
prefent  cafe,  what  is  the  true  idea  conveyed  to  the  mind  by  the  words 
"  ufurped poxoer  ?''  the  rule  to  find  it  out  is,  to  confider  the  words  of  the 
context,  and  to  attend  to  the  popular  ufe  of  the  words,  according  to  Horace, 
"  Arbitrium  eft,  et  jus,  et  norma  loquendi :"  my  idea  of  the  words,  burnt  by 
ufurped  power,  from  the  context,  is,  that  they  mean  burnt  or  fet  on  fire  by 
occafion  of  an  invajion  from  abroad,  or  of  an  internal  rebellion,  when  armies 
are  employed  to  fupport  it ;  when  the  laws  are  dormant  and  filent,  and  firing 
of  towns  is  unavoidable  :  thefe  are  the  outlines  of  the  pifture  drawn  by  the 
idea  which  thefe  words  convey  to  my  mind :  the  time  of  the  incorporation 
of  this  fociety  of  the  London- AJfurance  Company  w^as  foon  after  a  rebellion 
in  this  kingdom :  and  it  was  not  fo  romantic  a  thing  to  guard  againft  fire  by 
rebellion  as  it  might  be  now ;  the  time  therefore  is  an  argument  with  me 
that  this  is  the  meaning  of  thefe  words  :  rebellious  mobs  may  be  alfo  meant 
to  be  guarded  againft  by  the  provifo,  becaufe  this  corporation  commenced 
foon  after  the  riot  aft ;  and  if  common  mobs  had  been  in  their  minds  they 
would  have  made  ufe  of  the  word  mob :  the  words  "  ufurped  power"  mav 
have  great  variety  of  meanings  according  to  the  fubjeft  matter  where  they 
are  ufed  ;  and  it  would  be  pedantic  to  define  the  words  in  all  their  various 
meanings  ;  but  in  the  prefent  cafe  they  cannot  mean  the  power  ufed  by  a 
common  mob  ;  it  has  not  been  faid  that  if  one  or  fifty  perfons  had  wick- 
edly {it  this  houfe  on  fire,  that  it  would  be  within  the  meaning  of  the  words 
"  ufurped  power." — It  hath  been  objefted  that  here  was  an  ufurped  power 
to  reduce  the  price  of  vicluals,  and  that  this  is  part  of  the  power  of  the 
crown,  and  therefore  it  was  an  ufurped  power;  but  the  king  has  no  power 
to  reduce  the  price  of  viftuals  :  the  difference  between  a  rebellious  mob  and 
a  common  mob  is,  that  the  firft  is  high  treafon,  the  latter  a  riot  or  a  felony : 
whether  was  this  a  common  mob,  or  a  rebellious  mob  ?  the  firft  time  the 
mob  rifes,  the  magiftrates  read  the  proclamation,  and  the  mob  difperfe  ;  they 
hear  the  law  and  immediately  obey  it ;  the  next  day  another  mob  rifes  upon 
the  fame  account,  and  damages  the  houfes  of  two  bakers  ;  thirty  people  in 
fifteen  minutes  put  this  army  to  flight,  and  they  were  difperfed  and  heard 
of  no  more  :  where  are  the  /pedes  belli  which  Lord  Hale  defcribes  ?  this 
mob  wants  a  univerfality  of  purpofe  to  deftroy,  to  make  it  a  rebellious  mob, 
or  high  treafon:  Hales  PL  Coron.  135.  There  muft  be  a  univerfality,  a 
purpofe  to  deftroy  all  houfes,  all  inclofures,  all  bawdy-houfes,  &c.  here  they 
fell  upon  two  bakers  and  a  miller,  and  the  mob  chaftifed  thefe  particular 
perfons  to  abate  the  price  of  provifions  in  a  particular  place ;  this  does  not 
amount  to  a  rebellious  mob  :  upon  the  whole,  I  am  of  opinion  there  muft 
be  judgment  for  the  plaintiff: — and  accordingly  the  poftea  was  ordered  to 
he  delivered  to  him,  by  three  judges  againft  one. — 2  Wilfun  363.  C.  B. 
Mich.    1767. — Drinkioater  v.  The  Loud.  AJf.  Comp. 

.q  H  i^.    It 


oi8  FIR        E. 

5.  It  has  been  made  a  queftion,  in  cafe  a  mailer  of  a  fliip  fets  fire  to  her, 
in  order  to  prevent  her  falling  into  the  hands  of  an  enemy,  even  at  the  hazard 
of  being  blown  up  in  the  air,  or  otherwife  peridiing  together  with  the  crew, 
•'  whether  the  infurers  are  anfwerable  for  the  lofs,  or  can  defend  themfelves 
from  payment  thereof  on  the  ground  of  it's  not  being  occafioned  by  an 
unavoidable  accident  ?"-^Locccnius  dc  jur.  marit.  lib.  3.  c,  9,  and  Kuricke, 
guce/i.  29.  fol.  888.  hold,  that  the  aft  is  forbidden  as  well  by  the  divine  law, 
as   the  law  of  nature,  unlefs  there  be  a  full  expeftation  of  the  mafter  and 

crew  being  faved  in  betaking  themfelves  to  the  boat. As  to  the  infurers, 

if  the  mafter  could  no  otherwife  avoid  falling  into  the  hands  of  an  enemy,  or 
pirates,  and  that  there  was  a  nccejfity  for  taking  fo  violent  a  meafure,  the 
lofs  ought  to  be  fatisfied,  the  fame  as  if  it  had  happened  by  liglitening,  or  fire 
from  enemies : — it  was  thus  adjudged  at  Bourdeaux  the  7th  of  Sep.  1747,  in 
favour  of  Capt.  Elie  Leyflan,  who  had  burnt  his  own  (hip  ;  alfo  by  a  decree  at 
Aix  the  30th  of  March  1748,  againftthe  infurers  of  the  fliip,  le  Modefte,  Capt. 
Arhaud,  who,  being  purfued  by  privateers  towards  Cape  Trafalga,  had  fet 
fire  to  her,  and  faved  himfelf  and  crew  upon  the  coaft ;  and  likewifc,  by  a 
fentence  at  Marfeilles  the  27th  of  April  1748,  in  favour  of  Jacob  Francia, 
merchant  at  Bourdeaux,  againft  the  infurers  of  the  veffel,  fEfperance,  the 
capture  of  which  by  Englilh  cruifers  was  inevitable,  had  not  fire  been  fet  to 
her  by  the  captain. — 2  Valins  Comvi.  75. 

6.  Remark. — Notwiihftanding  the  above-mentioned  authorities,  I  am 
of  opinion  that,  unlefs  die  mafter,  &c.  were  in  danger  of  death,  by  falling 
into  the  hands  of  enemies,  or  pirates,  he  would  not  be  warranted  in  fetting 
fire  to  the  fliip  ;  becaufe,  although  flie  were  captured,  there  would  ftill  remain 
a  chance  of  her  being  retaken,  by  cruifers  of  his  own  nation,  or  poflibly  by 
fuch  part  of  her  crew  as  might  happen  to  be  left  on  board  of  her. 

7.     Policy,  on  Fire,  at  Anifierdam. 

WE  the  underwritten  do  infure  you  or  whom  elfe  it  may  concern, 

wholly,  or  partly,  friend,  or  foe,  viz.  each  for  the  fum  here  by  us  under^vritten, 
on  the  ftruclure,  building,   &c.  called  the  ftanding  and  fituated 

with  the  houfc  and  utenfils,  moreover  the  houfliold  furniture,  goods,  wares,  and  mer- 
chandifes,  of  whatfoevcr  quality  or  nature  they  may  be,  none  excepted,  as  already  are 
in,  or  on  the  aforefaid  or  during  the  whole  fpace  of  this  infurance  fhall 

be  brought  therein  (and  the  infured  fhall  be  at  liberty  at  any  time  to  houfe  as  many  goods, 
and  to  deliver  them  out  again,  as  he  fliall  pleafe)  againft  fire,  and  all  dangers  of  fire ; 
moreover  againft  all  damage  which  on  account  of  fire  may  happen,  either  by  tempeft, 
fire,  wind,  own  fire,  negligence  and  fault  of  own  fervants,  or  of  neighbours,  whether 
thofe  ncareft  or  further  off;  all  external  accidents  and  misfortunes,  thought  of  and  not 
thought  of,  in  what  manner  foever  the  damage  by  fire  might  happen  ;  for  the  fpace  of 
twelvemonths,    commencing  with  the  and  ending  the 

both  at  twelve  of  the  clock  at  noon  :   valuing  fpecially  and  voluntarily  the  faid  ftructurff, 
building,  lioufe,  iScc.  with  all  it.'s  utenfils,  and  houfliold  furniture,  at  the  fum  of 
and  the  goods,  wares,  and  merchandifes,  at  the  fum  of  and  thus  together 

at 


I 


FIRE.  2^9 

at  the  fum  of  and  it  Jhall  not  prejudice  ■whether  all  this  be  zvorth,  or  has  coft 

more  or  kjs.  And  the  infurcd,  or  whom  elfe  it  may  concern,  in  cafe  of  damage,  or 
hurt,  (hall  need  to  give  ?zo  j&roo/"  nor  account  of  the  value,  as  we  know  it  is  impoffible  to  be 
done  ;  but  the  producing  this  policy  fhall  fuffice.  And  in  cafe  it  fhould  happen  that  the 
faid  ftruQure,  building,  houfe,  utcnfils,  and  houlhold  furniture,  and  the  goods,  wares, 
and  merchandifes,  the  whole,  or  part,  are  burnt  and  fuffer  damage,  on  that  account, 
we  do  hereby  promife  punclually  to  pay  and  fatisfy,  without  any  exception,  within  the 
(pace  of  three  months  after  the  fire  fhall  have  happened,  due  notice  having  been  given  to 
us,  each  his  whole  fum  underwritten,  or  elfe  in  proportion  to  the  damages  fuffered, 
without  deduclion  :  provided  that  in  cafe  of  dL  partial  lofs  all  that  fhall  be  found  to  be  faved 
and  preferved  fliall  be  deducted,  after  the  deducting  of  the  charges  paid  for  the  faving,  and 
prcferving ;  and  concerning  which  the  infured  fliall  be  believed  on  his  oath  without  our 
alleging  any  thing  againft  it,  provided  there  be  paid  to  us,  in  ready  cafh,  for  the  con- 
fideration  of  this  infurance  per  hundred,   under  obligation  and  fubmilTion 

of  our  pcrfon  and  goods  prefent  and  to  come,  renouncing,  as  perfons  of  honour,  all 
cavils  and  exceptions  contrary  to  thefe  prefents  ;  reciprocally  fubmitting  all  differences,  as 
well  concerning  the  damages,  as  premiums,  to'the  dccifion  of  the  chamber  of  infurances  and 
averages  of  this  city  ;  and  chufing,  in  cafe  of  our  dwelling  without  the  jurifdiclion  of  the 
faid  city,  for  domicilium  citandi  et  executandi,  the  habitation  of  the  fecretary  of  the  faid 
chamber  for  the  time  being.     Done  at  Amilerdamj   &c. 

8.  Remark. — The  cuftom  at  Amflerdam,  of  admitting,  in  the  policy, 
a  fixed  valuation  for  what  they  infure  againft  fire,  may  be  of  very  bad 
confequence  ;  and  ought  not  to  be  permitted  by  law.  Our  London  policies 
are  better  expreffed. 

g.     Policy,  by  the    Corporation   of  the    London- AJfurance,   of  Hoibfe  and 

Goods  from  Fire. 

THIS  prefent  inflrumcnt  or  policy  of  affurance  witneffeth.    That  whereas 
hath  paid  into  the  treafury  of  the  corporation   of  the   London-Affurance, 
at  their  houfe    in   Cornhill,   London,  the  fum  of  for  the  affurance   of 

except  writings,  books  of  accompts,  notes,  bills,  bonds,  tallies, 
ready  money,  wearing  apparel,  jewels,  plate,  pictures,  gun-powder,  cattle,  hay,  flraw, 
and  corn  unthrafhed ;  and  alfo  except  glafs,  china,  and  earthen  wares,  hemp,  flax,  tow, 
pitch,  tallow,  tar,  and  turpentine,  unlefs  fuch  laft-mentioned  hazardous  goods  fhall  be 
fpecially  allowed,  and  acknowledged  to  be  affured  by  indorfement  upon  this  policy,  figned 
by  two  or  more  of  the  direftors  for  the  time  being. — Now  know  all  men  by  thefe  prefents, 
that  the  capital  ffock,  eftate,  and  fecurities  of  the  faid  corporation,  fhall  be  fubjefl;  and 
liable    to   pay,    make  good,  and   fatisfy    unto  the   faid  affured,    h  heirs,  executors, 

or  adminiftrators,  any  lofs  or  damage  which  fliall  or  may  happen  by  fire  to  the  faid  building 
or  goods  (except  as  before  excepted)   on  or  before  the  day  of  ■  in  the 

year  of  our  Lord  one  thoufand  feven  hundred  and  not  exceeding  the  refpeftive 

fums  of  and  fliall   fo  continue,   remain,  and  be    fubjeft  and  liable,  as 

aforefaid,  from  year  to  year,  to  be  computed  from  the  day  of  in 

every  year,  for  fo  long  time  as  the  alfured  fliall  well  and  truly  pay,  or  caufe  to  be  paid, 
the  fum  of  into  the  treafury  of  the  faid  corporation  on  or  before  the  day 

of  which  fhall  be   in  each  fucceeding   year;   and  the  faid  corporation   fliall 

agree  thereto,  by  accepting  and  receiving  the  fame  :    which  faid  lofs  or  damage  fliall  cither 

be 


220 


I        R 


be  paid  in  money  immediately  after  the  fame  fhall  be  feided  and  adjufted  [dtaucliag  only 
three poundi  per  cent.)  OT  otherwife,   if  the  faid  lofs  or  damage  fhall  not  be  adjuftcd,   fetded, 
and  paid  (making  fiich  dedu£lion  as  aforefaid)  within  fixty  days  after  notice  thereof  (liall 
be   given  to   the   faid  corporation  by  the  faid  affurcd,  that  then  the  faid  coporation.   their 
officers,  workmen,    or  affigns,  fhall,  at  the  charge  of  the  faid  corporation,   immediately 
after  the   expiration  of  the   faid  fixty  days,   begin  to  rebuild  or  repair  the  faid  building  fo 
burnt  or  damnified   by  fire,  and  within  a   reafonable    time,  put  the  fame  into  as  good  a 
condition  as  the  fame  was  in  at  the  time  when  fuch  fire  happened,  the  wainfcot,  fculpture, 
or  carving  work    thereunto  belonging  (if  any)  being,  in  cafe  of  an  adjullment  of  die  faid 
lofs  or  damage,  to  be  rated  and  valued  at  no  more  than  three  fhillings  per  yard ;    and,   in 
cafe  of  rebuilding  or   repairing  by   the  faid  corporation,   to  be  made  good  according   to 
that  rate  and  value,  and  not  otherwife. — And  the  faid  corporation  fhall  likewife,   imme- 
diately after  the   expiration  of  the  faid  fixty  days,  in  cafe  the  lofs  or  damage  of  the  faid 
goods  fhall  not  be  adjufted  and  paid,   as  aforefaid,  provide  and  fupply  the  afliired  with  the 
like  qvanlity  of  goods,  o'i  \\i&  fame  fort  and  kind,  and  of  equal  value  and  goodnefs  with  thofe 
burnt  or  damnified  by  the  fire. — Provided  always,  neverthelcfs,   and  it  is  hereby  declared 
to  be  the  true  intent  and  meaning  of  this  deed  or  policy,   that  the  faid  ftock,  eflate,  and 
fecurities  of  the  faid  corporation  fhall  not  be  fubjeft  or  liable  to  pay  or  make  good  to  the 
affured  any  lofs  or  damage  by  fire  which  fhall  happen  by  any  invajion,  foreign  enemy,  or  any 
military  or  vfurped  power   whatfoever. — And   it  is  hereby  alfo  provided  and  declared,  that 
this  deed  or  policy  fhall  not  take  place,  or  be  binding  on  the  corporation,  until  the  premium 
for  one  year  is  paid  ;    or,    in  cafe  the  affured  hath  already  made,   or  fliall  hereafter  make, 
any  other  affurance  upon  the  building  or  goods  aforefaid,    unlcfs  fuch  other  aflurance  fhall 
be  fpecified  and  allowed  of  by  indorfement  upon  this  policy,   figned  by  two  or  more  of 
the  direOors  for    the  time  being ;   nor  in  cafe  the   building  wherein  the  faid  goods  are 
depofiterj,  fhall,   at  the  time  when  any  fuch  fire  fhall  happen,  be  in   die  aQual  occupation 
of  any  perfon  or  perfons  who  fliall  ufe  or  exercife  therein  the  trade  of  apothecary,   chemifl, 
colour-man,  difliller,  fugar-baker,  bread  or  biflvet  baker,   fhip  or  tallow  chandler,  ftable- 
keeper,  innholdcr,    or  malfler,  unlefs  two  or  more  of  the  direftors  for  the  time  being  fliall 
by  indorfement,  figned  in  like  manner,    allow  fuch  trade  or  trades  to  be  ufed  or  exercifed 
therein  ;    nor,   in  cafe  the  faid  building  fhall  be  made  ufe  of  for  the  flowing  or  keeping 
fuch  hazardous  goods,  as  hemp,  flax,  tow,  pitch,  tallow,   tar,  or  turpentine,   unlefs  two  or 
more  of  the   direQors  for  the  time  being  fliall,   by  indorfement   figned  as   aforefaid,  allow 
fuch  hazardous  goods  to  be  kept  or  flowed  therein  ;    but  that  in  all  or  any  of  the  faid  cafes, 
ihefeprefents,  and  every  claufe,  ardcle,  and  thing  herein  contained,  fhall  ceafe,  determine, 
and  be  utterly  void  and  of  no  effeQ;    or  otherwife  fiiall  remain  in  full  force  and  virtue. 
— In  witnefs  whereof  the  faid  corporation  have  caufed  their  common  fcal  to  be  hereunto 
affixed,   the  day  of  in  the  year  of  the  reign  of  our  fovereign   lord 

by  the  grace  of  God,   of  Great-Britain,    France,   and  Ireland,   king,  defender 
of  the  faith,  &c.  and  in  the  year  of  our  Lord,  one  thoufand  feven  hundred  and 
By  order  of  the  court  of  direBors,  figned,  &c. 

N.  B.  The  court  of  dire£lors  have  ordered  fealed  receipts  to  be  given  for  all 
fubfequcnt  payments,  and  no  other  will  be  allowed  of:  nor  is  this  policy  to  be  of  any 
force,  if  qjjfigned. 

lo.  Remarks. — Policies  againft  fire  in  fl'zyZrtwi  places,  as  the  Weft-Indies, 
America,  Newfoundland,  &c.  on  houfes,  warehoufes  and  other  buildings, 
Ilores,  or  goods,  raerchandifes,  furniture,  and  other  property  therein  ;  or  on 
premifes,  &c.  fituated  in  different  parts  of  the  fame  town  or  diftri^i,  either 

of 


1        S        H, 


221 


of  which  are  fometimes  far  from  being  precifely  afcertained  or  defcribed  in 
fuch  policies  ;  are  in  general  very  hazardous  rifques,  not  only  with  refpeft  to 
the  inadequatenefs  of  the  premiums,  even  when  all  is  fairly  and  honeflly 
intended,  but  chiefly  on  account  of  the  deceit  and  impofition  which  may  be, 
and  I  am  afTured  have  been  praftifed,  in  recovering  lofTes  and  compenfation 
for  damages,  confiderably  beyond  what  Avere  fuflained. — And  when  fatal 
events  happen  by  fires  (which  are  frequent  in  fuch  diftant  parts  of  the 
world)  and  certificates,  and  even  affidavits,  perhaps  regular  enough  in  point 
of  form  are  tranfmitted  from  thence,  eftablifhing  claims  in  the  lump,  what 
method  or  means  can  be  ufed  effeftually  to  afcertain  the  truth  and  validity  of 
the  demand,  the  value  and  particulars  of  the  interejl,  or  the  quantum  of  the 
property  which  may  have  been  bona  fide  loft  ? — ^for  as  to  affidavits,  it  is  a 
maxim  often  noticed  in  our  courts  of  judicature,  that  thofe  who  are  capable 
of  committing  criminal  afts,  feldom  fcruple  to  maintain  them  by  fwearing, 
or  procuring  others  to  fwear  to  them  : — and  befides,  affidavits  made  formally 
and  in  writing,  for  particular  purpofes  and  with  particular  views,  may  be 
couched  in  fuch  terms  as  either  to  prove  but  little  fatisfaftory,  or  to  elude 
the  obfervation  except  of  an  attentive  eye,  with  refpeft  to  the  import  of 
them  : — however,  as  it  is  often  neceffary  that  fuch  infurances  (hould  be  made, 
and  as  when  they  are  attended  with  fairnefs  and  honefty  they  are  of  equal 
public  utility  as  the  infurance  of  property  in  other  cafes,  it  is  to  be  wiflied,  for 
the  fake  of  general  conveniency  and  fecurity,  that  more  authentic  proofs  and 
Touchers  were  required  and  produced,  on  occafion  of  fuch  difafters,  than  are 
ulually  fentfrom  the  places  where  they  happen. 

11.  Si:i:  Accident,  Certificate,  Dock,  End  of  Voyage  or  k.if que y  Friendly 
Society,  Hand-in-Hand  Fire-Ojjice,  Interejl,  London-AJJurance  Company^ 
Mafler,  Negligence,  Royal-Exchange  Afjiirance-Company,  Ship,  Society, 
Sun  Firc-Office,  Union  Firc-Office,  Ufage,  Wejlminjler  Fire-Office. 

FISH. 

1.  T  N  adjufting  a  lofs  on  fifti  exported,   the  infurers  (hould  be  attentive  that 
-*-  the   bounty,   to  which  the  affured  is   entitled,  be   dedufted  from   the 
invoice  price,  unlefs  there  be  a  valuation  in  the  policy. 

2.  Fish,  exported  from  any  part  of  Great-Britain  to  foreign  parts,  are 
entitled  to  tlie  following  bounties,  viz.  Pilchards  ox  f cads,  the  calk,  7s. — • 
Codfijh,  ling,  or  hake,  the  hundred,  5s. — the  fame,  wet,  the  barrel,  2S. ; 
dried,  called  haberdines,  the  cwt.  3s. — Salmon,  the  barrel,  4s.  6d. — White- 
herrings,  the  barrel,   2s.  8d. — Full  red  herrings,  the  barrel,    is.  gd. — Clean- 

Jhotten  red  herrings,  the  barrel,   is. — Dried  red/prats,  the  laft,   is. By 

Stat.  29  Geo.  2.  c.  33.  f.  5. — the  above-mentioned  bounties  were  extended  to 
fi(h  cured  in  Scotland  as  the  aft  direfts. 

3.  See  Average,  Bounty,  Commodity,  Fiflieries,  Free  of  Average,  Goods, 
Feafe,   Perifhabk-Commodities. 

3  I  FISHERIES, 


222  F        L        O        T        A. 

F       I       SHE       R       I       E       S. 

jj.TT^HE  fubje^s,  inhabitants,  merchants,  commanders  of  (hips,  maflers 
,s'J  -*-  and  mariners  of  die  kingdoms,  provinces  and  dominions  of  each- 
king  refpeftively,  fiiall  abftain  and  forbear  to  trade  and  fifh  in  all  the  places^ 
poffefTed,  or  which  (hall  be  poflefTed,  by  one  or  the  other  party  in  America: 
— and  if  any  fhip  or  veffel  fhall  be  found  trading  or  fifhing  contrary  to  the 
tenor  of  this  treaty,  the  faid  fhip  or  veU'el,  with  it's  lading,  proof  being  made 
tliereof,  fhall  be  conji/cated ;  neverthelefs,  the  party  who  fliall  find  himfelf 
aggrieved  by  fuch  fentence  or  confifcation,  fhall  have  liberty  to  apply  himfelf 
to  the  privy  council  of  that  king,  by  whofe  governors  or  judges  the  fentence 
has  been  given  againfl  him  :  but  it  is  always  to  be  underflood,  that  the 
liberty  of  navigation  ought  in  no  manner  to  be  diflurbed,  where  nothing  is 
committed  againfl  the  genuine  fenfe  of  this  treaty. — Treaty  with  France,  1686- 

2.     See  Bounty,  Fijk,  Greenland,  Herrioig-Fijhery,  Ireland,  Navigation  and 
Navigation  Act,  Neiofoundland,  Sea,  Whale- Fijliery. 

F         LA         G. 

1.  *'  I  ''  H  E  States  General  of  the  United  Provinces,  juflly  acknowledging 
■*-  the  right  of  the  king  of  Great-Britain  to  have  honour  paid  to  his 
flag  in  the  Jeas  hereafter  named,  M'ill  and  do  declare  and  agree,  that  all  and 
fingular  the  fliips  and  veflels  whatfoever  belonging  to  the  faid  United 
Provinces,  whether  fhips  of  war  or  others,  whetlier  in  fquadrons  or  fingle 
fhips,  which  happen  to  meet  any  fliips  or  veffels  whatfoever  belonging  to  the 
king  of  Great-Britain,  whether  one  or  more,  carrjnng  his  Britannic  majefly's 
flag  called  the  Jack,  in  any  of  the  feas  from  Cape  Fimjicrre  to  the  middle 
point  of  land  in  Norway,  called  Van  Staten,  the  faid  fliips  or  veffels  fhall  flrike 
their  top-fail,  and  take  down  their  flag,  in  the  fame  manner,  and  with  the 
like  teflimony  of  refpe6l,  as  has  been  ufually  paid  at  any  time  or  place  here- 
tofore by  any  fliips  of  the  States  General  and  their  anceflors,  to  any  fhips 
of  his  Britannic  majefly  or  his  anceflors. — Treaty  with  Holl.  1674. 

2.     See  Navigation  -and  Navigation  ASl,  Sea. 

F         L         A         X. 

See   Average,  Commodity,   Corn,   Damage,  Free  of  Average,  Goods,  Hemp, 

PeriJJiablc-Commodities. 

F         L         O         T         A. 

1.  T?LOTA,  in  the  Spanifh  commerce,   is  a  fleet  confifling  of  three  men 

-*-      of  war  (the  Almiranta,  the  Capitana,  and  a  fmaller  fhip,  which  go 

on  the  king's   account)  and  about  fifteen  merchant  fliips,  from  400  to  1000 

tons-: 


FOREIGN      COURT.  223 

tons :  they  are  fent  every  year  in  the  autumn,  from  Cadiz  to  Vera  Cruz,  in 
the  gulph  of  Mexico,  loaded  with  ahnoft  every  fort  of  goods  which  Europe 
produces  for  export :  Spain  itfelf  fends  out  little  more  th^n  the  wine  and  fruit. 
No  fliip  in  this  fleet  is  permitted  to  break  bulk  till  they  arrive  at  Vera  Cruz  -; 
where,  when  all  the  goods  are  landed  and  difpofed  of,  the  fleet  takes  in  the 
plate,  precious  ftones,  cochineal,  indico,  caccao,  tobacco,  fugar,  hides,  8ic. 
with  which  it  return^  in  about  18  or  20  months  ;  having  called  at  the  Havan- 
na,  in  the  ifland  of  Cuba,  where  they  meet  the  galleons  and  regifter-fliips, 
another  fleet ;  which  carry  on  all  the  trade  of  Terra-Firma,  by  Carthagena  ; 
and  of  Peru,  by  Panama  and  Porto  Bello. — When  the  flota  arrives  at  the 
Havanna,  and  joins  the  galleons  and  regiflier  fliips,  fome  of  the  cleaneft  and 
bell  failing  veflels  are  difpatched  to  Old  Spain,  with  advice  of  the  contents  of 
thefe  feveral  fleets,  as  well  as  with  the  treafure  and  goods  of  their  own, 
that  the  court  may  judge  what  indiilto,  or  duty,  is  proper  to  be  laid  on  them, 

and  what  convoy  is  neceflary  for  their  fafety. Infurances  to  a   very  large 

amount  are  every  year  made,  in  London,  on  tliefe  fleets. 

2.     See  Average,  Bottomry,  Damage,  Detention,  Embargo,  Enemy,  Regijler, 
Spain,  Vera  Cruz. 

FLOUR. 

See  Average,  Commodity,  Corn,  Damage,  Free  of  Average,  Peafe,  Perijliahle-^ 

Commodities. 

FOREIGN      ADJUSTMENT. 

1.   T~XAMAGES  which  occur  in   foreign  parts,  and  are  adjufl;ed  there, 

■^^  ought  in  general  to  be  fettled  here,  according  to  fuch  adjufl;ments, 

though  the  regulations  which  were  followed,  fliould  be  contrary  to  our  laws ; 

1  Mag.  5 : but  the  infurers  in  England  are  not  obliged  to  approve  of  all 

adjuftments  made  in  other  countries,  nor  to  comply  implicitly  with  foreign 
cufloms,  when  their  unreafonablenefs  can  be  demonftrated.— /{'z^.  168. 

2.     See   Adjujlment,   Certificate,   Condemnation,   Damage,   Foreign  Court, 
Regulation. 

FOREIGN      COURT. 

1.  T  TOW  far  the  judgments  and  decrees  of  foreign  courts  are  binding 
-*--*-  or  regarded,   in  England,   may  be   collefted   from   the    following 
authorities. 

2.     To  award  execution  upon  a  foreign  decree,  without  admitting  any 
objection  againfl:  it,  would  be,  for  ought  the  court  can  know,  to  fupport  and 

promote 

v..  1:1,....' 


224 


FOREIGN      OWNER. 


promote  injuftice :  a  court,  as  well  as  an  individual,  may  in  certain  circum- 
flances  have  reafon  to  forbear  afting,  or  executing  their  office  ;  but  the  doing 
injuftice,  or  the  fupporting  it,  cannot  be  juftified  in  any  circumftances. — 
Ld.  Kaims  Prin.  of  Equ.  370. 

3.  Sentence  of  a  foreign  admiralty,  condemning  a  fliip  as  z??/7/^aV72i, 
IhaU  npt  be  read  on  trial  of  an  ilTue  joined  on  that  fa£l. — Stran.  1078. 

4.  When  fentence  is  given  in  a  foreign  admiralty,  the  party  may  libel  for 
execution  of  that  fentence  here  ;  becaufe  all  courts  of  admiralty  in  Europe 
are  governed  by  the  civil  laxu. — Sid.  418. 

£1,5.  Sentences  of  any  admiralty  In  another  kingdom  are  to  be  credited, 
that  ours  may  be  credited  there,  and  ihall  not  be  examined  at  law  here  ;  but 
the  king  may  be  petitioned,  who  may  caufe  the  complaint  to  be  examined  ; 
and  if  he  finds  juft  caufe,  may  fend  to  his  ambalTador  where  the  fentence  was 
given,  to  demand  redrefs,  and  upon  failure  thereof  will  grant  letters  of  margue 
and  reprifal. — Raym.  473. 

6.     The  fliip  being  unladen  at  Barcelona,  where  the   freight  was  payable 
by  the  charter-party,  the  fador  refufing  to  pay  the  freight,  the  mafter  of  the 
fhip  litigated  there  in  the  admiralty  for  it ;    and  the   caufe  was  heard,  and 
judgment  there  given,  that  ihe  mafter  ftiould  have  his  freight,   but  that  the 
damages  the   goods  had  fuftained  in  the  voyage,  by  reafon  of  the  deviation, 
fhould  be  dedufted,   and  the  account   referred  to    the  deliquidators  (who  are 
in  the  nature  of  our  mafters  in  chancery)  to  take  the  account,  and  the  money 
ordered  to  be  brought  into  court ;    but  the   faftor  had  appealed  to  a  higher 
court  there. — Lord  Chancellor  declared,  that  he  would  not  flight  their  pro- 
ceedings beyond  fea  ;  and  if  in  this  cafe  the  damages  had  been  there  afcer- 
tained,  or  a  peremptory  fentence  given,  the  fame  fliould  have  been  conclufive 
to  all  parlies ;    but  it  appearing,  the   faftor  was  a  native  of  that  place,  and 
therefore,  in  all  probability,  might  again  prevail ;    and  the   defendant  being 
willing  to  defift  from  his  fuit  there,  his  lordlhip  direfted  a  trial  here  by  jury,  to 
afcertain  the  damages  fuftained  by  the  deviation. — Vcrn.  21.    Mich.   1681. 
2  Chanc.  Ca.  238. 

7.     See  Admiralty  and  Admiralty-Court,  Civil  Law,  Condemnation,  Infuffi- 
ciency.  Letter  of  Marqiu,  Perijhable  Comjnodities. 

FOREIGN       OWNER. 

~  r.lvAoll  '-'    '■•'■^  ■ 

1.  "O  Y  Stat.  13  Geo.  3.  c.  26. — Whereas  many  inconveniences  have  arifen, 

-■-J  by  foreigners  becoming  pofTcffed  of,  and  entitled  unto,  any  part  or 

fliare  of  any  Britifli  fhip  or  veflel  whatfoever,  belonging  only  to  natural-born 

fubjecls  of  his  majefty,  whereby  the  other  part  owners  of  fuch  fhip  or  veflel 

cannot  obtain  the  regifer  required ;  no  foreigner  or  other  perfon  or  perfons 

whatfoever. 


FRAUD.  225 

whatfoevcr,  not  being  a  natural-born  fubjeft  of  his  majefty,  his  heirs  or 
fucceflbrs,  (hall  be  entitled  to,  or  fhall  purchafe  or  contraft  for  any  part  or 
parts,  (hare  or  fhares,  of  any  Britifh  fliip  or  veffel  whatfoever,  belonging  only 
to  natural-born  fubjefts  of  his  majefly,  his  heirs  or  fucceifors,  without  the 
confent  in  writing  of  the  owner  or  owners  of  three-fourth  parts  in  value  at 
leaft  of  fuch  (hip  or  veffel,  for  that  purpofe  firfl  had  and  obtained,  and 
indorfed  on  the  certificate  of  the  regifler  of  fuch  fhip  before  two  witneffes. 

2.     See    Foreign  Ships,    Owner. 

FOREIGN       SHIPS. 

1,  T>  Y  Stat.  5  Eliz.  c.  5.  f.  8  and  12. — and  by  12  Car.  2.  c.  18.  f.  6. — It 
-^-'  fliall  not  be  lawful  to  any  perfon  or  perfons  to  caufe  to  be  loaden 
and  carried  in  any  bottom  or  bottoms,  whereof  any  ftranger  or  flrangers 
born  then  be  owners,  fhip-maflers,  or  part-owners,  any  kind  of  fifh,  viftuals, 
wares,  or  things  foever,  from  one  port  or  creek  of  this  realm  to  another, 
upon  pain  to  forfeit  all  the  goods  fo  loaden,  or  the  value  thereof. 

2.     See    Eajl-India    and   Eajl-India   Company,    Enemy,    Foreign  Ozoner, 
France,    Fraud,  Navigation  and  Navigation- AS. 

FRANCE. 

1.    "D  Y  Stat.  21  Geo.  2. — Infurance  on  fliips  or  goods  appertaming  to  the 

-*-'  crown  or  fubjefts  of  France,  or  lending  them  money  on  bottomry, 

was  prohibited :  but,  the  acl  was  only  temporary,  and  it's  duration  limited  to 

that  of  the  then  war. Under  title  Enemy,  the  reader  may  find  the  curious 

and  interefting  quejlion  concerning  the  advantage,  difadvantage,  and  legality 
of  infuring  the  property  of  enemies,  fully  difcuffed. 

2.     See  Bottomry,  Conful,  Enemy,  Foreign  Ships,  Ordinance,  Treaty,  War. 

F         R         A         U         D. 

1.  nnHIS  is,  indeed,  a  very  copious  fubjeft  ! — 'To  ftate,  although  with  the 

-^     utmofl  brevity,  even  fingle  inflances  of  each  of  the  various  modes  of 

ileceit,  cheating,   and   impofition,   M'hich   are    (efpecially  during   the    prefent 

complicate  war)  daily,  nay  hourly  praftifed  in  matters  of  infurance,  would 

alone  occupy  this  entire  volume  ! It  is,  however,  with  no  lefs  truth,  than 

rcliiftance  and  regret,  that  I  deem  it  requifite  to  aver,  that  very  iniquitous 
concealments,  mifreprefentations,  coUuJions,  equivocations,  Sec.  conflantly  reign, 
to  a  more  or  lefs  degree,  in  a  great  part  of  the  tranfaftions  of  this  bufmefs,  in 
England ;  to  the  infamy  of  the  culpable  parties,  and  to  the  reproach  of  the 
fupinenefs  of  the  honourable  and  refpeftable  part  of  our  merchants  and 
infurers  -.    who  might,  unqueRionably,  with  a  little   public-fpirited  exertion, 

3  K  form. 


226  FRAUD. 

tbrm,  and  carry  into  execution,  under  the  fanflion  of  parliamentary  authority, 
fome  well  adapted  plan  and  means  of  remedy  of  fuch  enormous  evils  ;  which, 
fo  long  as  they  are  futfered  to  prevail,  will  redound  confiderably  to  the 
degradation  of  Britifli  commercial  charafter  and  abilities,   and  to  the  great 

detriment  of  the  general  good,  as  well  as  to  the  ruin  of  many  individuals. 

Having,  in  the  courfe  of  my  Preliminary  Difcourfe  prefixed  to  this  work, 
fpecifically  delineated  thofe  diforders,  explained  their  caufes,  and  proved 
inconteflably,  by  a  number  of  recent  and  remarkable,  yet  very  common 
injlances,  the  extraordinary  prevalency  of  them,  and  their  pernicious  effefts ; 
and  having  alfo  fuggefled  the  outlines  of  eligible  methods  of  deteftion,  better 
regulation,  and  prevention  ;  I  (hall,  here,  Hate  the  fentiments  of  fome  other 
writers  on  the  fubjeft  o^  fraudulent  in/urances,  together  with  a  few  C(7/^i  in 
point,  and  cxtrafts  from  fome  of  the  latos  provided  in  other  countries  for  the 
due  punilhraent  of  fuch  atrocious  praftices  ;  and  then  refer  my  readers  to 
fundry  other  heads,  or  titles,  in  this  work,  where  various  malverfations  are 
particularly  expofed,  with  rules  and  methods  of  guarding  againft,  detefting, 
and  punifliing  them. 

2.  Insurances   being  contrafts,  the  very  effence  of  which  confifts  in 
obferving  the  pureft   good   faith   and  integrity,  they  are  vacated  by  any  the 

leaf}  fliadow  of  fraud  or  undue  concealment. — 2  Black  Com.  461. Fraud, 

covin,  colluhon,  and  deceit,  are  often  ufed  as  fynonimous  words,  and  in  what- 
foever  fliape  or  form  they  appear,  are  always  deemed  odious  in  the  eye  of  the 

law. — Co.  Litt.  3.  b. Fraud   or  covin   may,   in  judgment  of  la\v,  avoid 

every  kind  of  acl : — it  invalidates  as  much  in  a  court  of  law,  as  in  a  court  of 
equity; — courts  of  equity  and  courts  of  law  have  a  concurrent  jurifdiclion  to 
fupprefs  and  relieve  againll  fraud ;  but  the  interpofition  of  the  former  is  often 
necellary,  for  the  better  invefligating  truth,  and  to  give  more  complete 
redrefs. — 1  Burr.  391  to  396. "  Whether  a  tranfaftion  be  fair  or  fraudu- 
lent.'^" is  often  a  queflion  of  law:  it  is  the  judgment  of  law,  upon  fafts  and 
intents. — Ibid.  474. 

3,  The  firft;  defign  of  alfurance  was  to  encourage  the  merchants  to 
export  more  of  our  produce  and  manufaftures,  when  they  knew  how  to  eafc 
themfelves  in  their  adventures,  and  to  bear  only  fuch  a  proportion  thereof  as 
they  were  willing  and  able  to  do :  but,  by  the  irregular  praftices  of  fome 
men,  this  firll  intention  has  been  wholly  defeated,  who  "  without  any 
intereft*,"  have  put  in  early  policies,  and  gotten  large  fubfcriptions  on  fliips, 
only  to  make  advantage  by  felling  them  to  others ;  and  therefore,  have 
induftrioufly  promoted  falfe  reports,  and  fpread  rumours,  to  the  prejudice  of 
the  (hips  and  mafters,  filling  men's  minds  with  doubts,  whereby  the  fair 
trading  merchant,  when  he  comes  to  infure  his  intereft,  either  can  get  no  one 
to  underwrite,  or  at  fuch  rates,  that  he  finds  it  better  to  buy  the  other 
policies  at  advance :  by  which  means  thefe  flock-jobbers   of  infurance  have 

*  This  was  before  the  Stat.  19  Geo.  2.    c.  37.  for  prohibiting  infuranccs   interejl  or  no  interefl. 

frequently, 


R        A        U        D. 


227 


frequently,  as  it  were,  turned  it  into  a  wager,  to  the  great  prejudice  of  trade. 
— Likcwife  many  ill-defigning  men,  their  policies  being  over-valued,  have  (to 
the  abhorrence  of  honeft  traders,  and  to  the  fcandal  of  trade  itfelf)  contrived 
the  lofs  of  their  own  fliips : — now,  if  the  parliament  would  pleafe  to  take 
thefe  things  into  conlideration,  they  may  reduce  infurance  to  its  firll  intention, 
by  obliging  the  in/ured  to  hcarfuch  a  proportionable  part  of  his  adventure  (the 
premium  included)  as  to  them  fhall  feem  fit ;  and  alfo  the  infurers,  when  a 
lofs  is  fully  made  out,  to  pay  their  fubfcriptions  without  abatement  or 
boggling  ;  and  if  any  differences  fliould  arife,  to  direft  eafy  ways  for  adjufting 
theiu,  V.  ithout  attending  long  iffues  at  law,  or  being  bound  up  to  fuch  nice 

rules  in  their  proof,  as  the  affairs  of  foreign  trade  will  not  admit. 1  know, 

that  by  a  claufe  in  a  llatutc,  made  primo  AnncE*,  "  the  wilful  calling  aw-ay, 
burning,  or  otherwife  dellroying  a  fliip,  by  any  captain,  mafl:er,  mariner,  or 
other  officer  belonging  to  it,  is  ma.de/elony,  without  benefit  of  clergy;"  but 
that  flatute  is  fo  qualified,  that  it  is  difficult  to  convift  the  offender,  becaufe 
the  fa6l  muff:  be  done,  to  the  prejudice  of  the  owner,  or  owners,  or  of  any 
merchant  or  merchants,  that  fhall  load  goods  thereon,  elfe  he  doth  not  come 
within  it's  penalty  ;  fo  it  doth  not  reach  the  evil  I  here  mention,  viz.  the 
abominable  contrivance  of  the  owners  to  have  their  own  fiiips  deflroyed,  in 
order  to  make  an  advantage  by  their  infurances ;    a  crime    fo  black  in  itfelf, 

that  it  cannot  be  mentioned  without  horror. Thefe  men,  when  they  frame 

their  dark  defigns,  will  take  care,  for  the  fecurity  of  thofe  they  employ,  that 
none,  befides  themfelves,  fhall  load  goods  on  the  fliips  they  intend  fhall  be 
thus  deftro)'ed  ;  and  it  cannot  be  fuppofed  that  they  receive  prejudice  thereby 
themfelves,  fo  the  profecution  on  that  flatute  is  evaded :  but,  if  the  in/ured 
were  bound  to  make  out  their  intcrcjls,  and  to  bear  a  proportionable  part  of  the 
lofs  themfelves,  this  would  naturally  prevent  fuch  fcandalous  pradlices. — 
Cary  on  Trade. 

4.  That  great  frauds  are  the  natural  confequence  of  eftimating  fliips  at 
an  imaginary  value  in  policies  of  infurance,  is  to  the  higheft  degree  evident: 
for,  when  a  fhip  is  efliniated  above  it's  real  value,  how  will  the  owner  or 
commander  fufler  by  a  wreck,  or  what  fliall  reftrain  him  from  deflroying  his 
veffel,  when  it  may  be  done  with  fecurity  to  himfelf,  except  that  integrity, 
which  ought  to  be  generally  diffufed,  but  which  is  not  always  to  be  found, 
and  to  which  few  men  care  to  truff  upon  occafions  of  far  lefs  importance.-— 
Ships  are  fometimes  fo  weakly  manned,  and  fo  penurioufly  and  negligently 
flored  ;    lb  much   decayed  in  the   bottoms,  and   fo  ill   fitted  with   rigging ; 

that  their  arrival  is  matter  of  aftonifliment. It  may  deferve  confideration, 

whether  the  fuccefs  of  privateers  may  not  be  in  great  part  attributed  to  this 
pernicious  pra6lice  ?  whether  captains,  Avhen  their  veffels  are  infured  for  more 
than  their  value,  do  not  raflily  venture  into  known  danger  ?  whether  they 
do  not  wilfully  mifs  the  fecurity  o{ convoys?  whether  they  do  not  direft  their 
courfes    where   privateers   may   mofl   fecurely    cruize   to   intercept   them.? 

*  See  Barratry,  p    42. 

whether 


228  FRAUD. 

whether  they  do  not  furrender  with  lefs  refiftance  than  interefl.  would  excite? 

and  whether  they  do  not  raife  clamours  againfl;  the  government  for  their  ill 

fuccefs,  to  avoid  the  fufpicion  of  negligence  or  fraud  ? That  another  kind 

of  frauds  are  committed  in  the  praftice  of  infuring,  is  well  known  :  it  is  a 

common  praftice  to  take  money  on  bottomry,   by  way  of  pledge    for  the 

captain's  fidelity,  and  to  deftoy  this  fecurity  by  infuring  above  the  real  value  : 

fo  that  the  captain  may  gain  by  neglefting  the  care  of  his  veflel,   or  at  leaft 

fecure    himfelf  from   lofs,   and   indulge   his    eafe    or   his   pleafure,   without 

apprehenfion  of  diminifhing  his  fortune. The  whole  praftice  of  infurance, 

in  it's  pre fent  (late,  is  fo  perplexed  with  frauds,  and  of  fuch  manifeft  tendency 

to   the  obftru6lion  of  fair  commerce,  that  it  abfolutely  requires  fome  legal 
regulations, — Pojllet.  Dicl. 

5.  Ix  the  courfe  of  fundry  debates  in  parliament  (previous  to  the  palTmg 
the  aft  of  19  Geo.  2.  c.  37.  for  regulating  infurances)  with  refpeft  to  the 
inferting  in  policies  imaginary  valuations,  interejt  or  no  interejl,  &c.  and  the 
frauds  thereby  occafioned,  the  two  following  inftances  were  produced  : — viz. 

6.  The  Royal  George  was  a  large  fhip  in  the  fervice  of  the  South-Sea 
company,  which,  having  been  a  voyage  to  Vera  Cruz,  put  in  at  Jamaica 
in  her  return  ;  and  being  there  refitted  to  proceed  on  her  voyage  homewards, 
fet  fail,  and  came  within  a  week's  failing  of  the  port ;  when,  upon  a  fudden, 
the  officers  entered  into  a  confultaiion,  and  determined  to  go  back  a  month's 
voyage  to  Antigua,  for  what  reafons  may  be  eafily  guefl'ed,  the  fliip  being 
infured  upon  a  fwppofed  value  of  6o,oool. — Accordingly  they  fleered  to 
Antigua,  in  oppofition  to  all  the  remonftrances  of  the  carpenter,  who 
honeftly  declared  againft  their  whole  procedure :  at  Antigua  they  found 
fome  method  of  influencing  the  officers  of  that  ifland  to  declare  the  fliip  unfit 
for  the  profecution  of  the  voyage  :  and  to  confirm  that  declaration,  they 
flranded  the  fhip  upon  a  bank  of  fand,  forced  out  the  iron  that  grapples  the 
timbers  together,  and  having  firfh  taken  away  the  mafls  and  rigging,  and 
whatever  elfe  could  be  ufed  or  fold,  threw  the  ballafl  to  each  end,  and  fo 
broke  the  veflel  in  the  middle. — Having,  thus,  as  they  imagined,  raifed  their 
fortunes,  they  came  home  triumphantly  from  their  profperous  voyage,  and 
claimed  the  money  for  which  the  fhip  was  infured:  the  infurers  enquired  into 
the  affair  with  all  the  induftry  which  it's  importance  naturally  excited,  and 
determined  to  try  whether  the  fhip  might  not  be  refitted  and  brought  to 
England  ;  which  was  elfefted  without  much  expence,  or  any  difficulty. 

y.  A  SHIP  in  the  fervice  of  the  Eafl;-India  company  being  infured,  was 
run  afhore  by  the  captain  in  fuch  a  manner  that  he  imagined  none  but  himfelf 
able  to  recover  it ;  and  therefore,  though  it  coft  5,0001.,  fold  it  for  500I.  ;  but 
the  purchafer,  no  lefs  expert  than  the  captain,  found  means  very  fpeedily 
to  difengage  it,  to  reflore  it  to  a  proper  condition  with  little  expence,  and 
was  enriched  by  his  fortunate  bargain. 

8.       A  SCHOONER 


FRAUD.  229 

8.  A  SCHOONER  entered  the  port  of  Oflend  in  the  fpring  oF  lySS,  whofe 
mafter  was  a  native  of  Gibrahar ;  and,  upon  information  given  under  oath, 
that  this  man  had  formerly  fled  from  London  to  Dunkirk,  to  avoid  a 
profecution  in  the  admirahy-court,  on  fufpicion  of  having  funk  a  fliip  he 
commanded  at  that  time,  it  was  determined  to  vifit  the  veiTel  of  which  he 
was  now  mafter  and  fole  owner. — Six  Britifti  mafters  found  her  to  be 
French-built,  declared  her  to  be  a  coffin,  and  added  that  flie  was  only  fit  to 
fink :  on  further  enquiry  it  was  found,  that  he  had  bought  her  at  Dunkirk 
for  250I.  and  infured  her  at  London  for  500I. 

9.  The  24th  of  March  1778,  the  fliip.  Three  Brothers,  P — dm — re, 
mafter,  was  run  aground  in  the  night :  the  captain  lay  aftiore  ;  the  weather 
was  remarkably  fair,  and  the  wind  fair  for  Coi-k,  the  place  of  his  deftination, 
for  twenty-four  hours  before  ;  fo  that  there  was  no  colour  or  pretext  for  the 
wrecking  the  faid  floop  : — this  captain  had  been  caft  away  three  times  within 
two  years  ;  I  prefume  at  the  expence  of  the  infurers. — Letter  from  a  gent, 
at  Lative,  March  the  26th  1778,  to  the  R.  E.  AJf.  Co. 

10.  Case. — In  the  year  1678,  one  Newnham,  Perkins,  and  Stoakes,  were 
owners  of  a  velfel  called  the  May-flower  Ketch  ;  the  veffel  comino-  laden  Avith 
wines  on  the  account  of  Firebralfe  and  Stone,  to  the  Ifle  of  Wight ;  Perkins, 
being  then  in  the  fame  place,  contrived  with  one  Joy,  the  mafter,  to  fell  the 
freighters'  goods  privately ;  and,  that  being  effefted,  to  go  out  to  fea  fome 
fmall  diftance  from  the  Ifle,  and  there  privately  fink  the  veffel,  and  pretend 
Ihc  ftruck,  and  then  foundered  by  the  extremity  of  the  weather. — The  plot 
being  laid,  Perkins  haftened  to  London,  and  makes  a  policy  of  infurance  on 
the  veffel  ;  which  being  done,  he  remits  his  orders  to  Joy,  to  put  the 
contrivance  in  execution  ;  who  accordingly  (the  goods  or  the  beft  of  them 
being  difpofed  of)  ftood  out  to  fea,  and  then  with  his  own  hands,  hv  the 
force  of  an  iron  crow,  made  a  hole  in  the  hold,  and  then  in  his  long-boat 
conveyed  himfelf  and  mariners  afhore. — ^Joy  fends  advice  of  the  lofs ;  and 
Perkins  (as  if  he  had  never  known  any  thing  of  the  matter)  demands  the 
money  allured  with  great  confidence,  and  thereupon  brings  an  aftion  for  the 
fame  ;  but  before  the  caufe  came  to  a  trial,  Firebralfe  and  Stone  brought 
trover  againft  Perkins,  and  thereupon  the  whole  fraud  was  detefted,  and 
judgment  given  for  the  plaintiffs  ;  with  this  further  intimation,  that  if  the 
owners  proceeded  in  their  aftion  on  their  infurance,  they  muft  expeft  that 
their  praftice  and  fraud  would  totally  poifon  it:  fo  they  went  no  further. — 
MolLoy,  b.  2.  c.  7.    f  5. — Firebrajfe,  &c.  v.  Perkins. 

11.  Case. — The  Mary,  captain  Wilfon,  was  hired  at  London  to  carry 
goods  to  Dublin,  and  an  infurance  was  made  on  fhip  and  freight;  but  in  her 
paffage  flie  ran  afliore  on  the  fands  called  Artelow  Grounds,  and  was 
deferted  by  the  captain  and  failors,  who  went  afhore  to  fave  their  lives, 
fuppofing  the  fhip  irretrievably  loft  ;  but  fome  fifhermen  hearing  of  the  wreck 
the  night  before,  went  out  after  her,  and  early  in  the  morning  fpied  a  fail  off 

3  L  Maidenhead 


230 


R        A        U        D. 


Maidenhead  near  Artelow  in  the  county  of  Wicklow,  and  about  tlarty  miles 
from  Dublin,  lying  afloat  in  about  ten  or  eleven  fathom  of  water,  and  about 
a  mile  and  a  half  from  fliore,  which  proved  to  be  the  aforcfaid  fliip  Mary  ;  and 
on  coming  up  with  her  in  the  laft  quarter  ebb,  they  found  the  fliip  laying  to, 
with  her  jibb  fail    hauled  to    windward,  and  her  mizzen  fail    fet,   and   on 
boarding   her  found  her   entirely   deferted,  without  one   perfon  therein: — 
after  the   fifliermen  had  got  in,  they  founded  the  pumps,  and  found  fo  little 
water  in  her,  that  two  hands  cleared  her  in  an   hour's  time,   after  which  flie 
leaked  but  very  little  ;    and  fome  few  hours  after,  the  fifliermen  meeting  with 
a  pilot,   agreed  with  him  for  half  a  guinea  to  carry  her  into  Polebegg  (which 
is  a  place  where  fliips  bound  for  Dublin,    that  draw  much  water,  are  unloaded 
and  difcharged)  where    flie  was   delivered  to  captain  Wilfon,  who  took   her 
in  charge,  and  was  afterwards  moored,    and  all  her  cargo  delivered  fafe  aitd 
undamnified,    and  the  freight  accordingly  paid  for  the  fame. — The  fliip  was, 
after  her  difcharge,    removed  from  Polebegg  to  the  bankflde,   and  there  laid 
on  the  ground  to  fearch  if  flie  had  received   any  damage  :   and  it  was  found 
that  nine  or  ten  feet  of  her  flieathing  was  rubbed  off,    and  about  the  fame 
quantity  of  her  falfe  keel   broke,  and  the  fliip   flrained  very  much ;  fo  that 
they  were   forced  to  carry  her  back  to   Polebegg,  and  there  moor  again. — 
The  plaintiff  demanded  the  whole  infurance,  which  was  700I.  on  a  fuppofed 
proof  of  the  fliip  being   rendered  unfit  for  any  future  fervice,  by  her  being 
run  afliore  as  aforementioned  ;    and  the   defendant    tries    to   invalidate   his 
claim,   by  firfl;  endeavouring  to  prove  that   flie  could    not   be   of  near  the 
value   infured,   as  flie  was  an   old  New-England  built  fliip,    and  fold  a  little 
before,  to   be  broke   up,  for    150I.  but  the  purchafer  refold  her  to  another, 
who  fold  the  moiety  thereof  to  the  plaintiff",  as  he  aflerts,  for  400I,  the  truth 
of  which  fale  the  defendant  fufpecls,  as  well  upon  the  account  of  the  lownefs 
of  the  firfl:  purchafe,  as  an  excufe  upon  which  the  concern  was  wrote  ;    and 
he  likewife  offers  fome  reafons  to  fuppofe  that  the  fliip  was  wilfully  run  afliore, 
and  not  undefignedly  as  the  captain  aflerts  :    and  to  fupport  thefe  allegations, 
he  mull  refer  to  the  manner  in  which   flie  was    found,    with  little  or  no 
damage,   as  aforefaid,  more  than  what  was  occafioned  by  her  lying  aground  : 
that  the  captain  had  a  very  bad  charafter,  and  it  was  fufpefted  he  had  made 
large  infurances,  which  induced  him  wilfully  to  lofe  the  fliip,   more  cfpecially 
as  the  mate  had  declared,  that  if  the   captain  would   have  left  him  two  boys, 
he  would  not  have  quitted  the  fliip,   and  feveral  other  things  to  the  purpofe 
aforefaid  -,   but  thefe  not  appearing  fo  plain  to  the  jury,  they  found  a  verdict 
for  the  plaintiff. — Lex  Merc.   red.  269,   at  Guildhall,   after  Mich.    1747. — 
Hujfey  V.  Jlexcctt. 

12.  Case. — The  plaintiff  caufed  infurance  to  be  made  for  himfelf  or 
others,  loft  or  not  loft,  on  the  good  fliip  I'Heureux,  captain  Beatrix,  from 
Bayonne  to  Martinico  and  Cape  Franfois  in  St.  Domingo,  with  liberty  to  touch 
and  ftay  at  any  ports  or  places  whatfoever,  without  prejudice  to  the  infurers, 
and  without  other  proof  of  intereft,  in  cafe  of  lofs,  than  the  prefent  policy, 
and  the    French  and  American  livres    to  be  valued  at  eleven  pence  each, 

without 


FRAUD.  231 

without  further  account  to  be  given  ;  and  for  this  the  afTured  paid  30  guineas 
per  cent,  to  have  12  guineas  per  cent,  returned,  in  cafe  the  fhip  (hould 
depart  with  convoy  from  Bayonne  or  I'lfle  d'  Aix. — The  fhip  failed  two  days 
after  in  profecution  of  the  aforefaid  voyage,  and  was  taken,  brought  to 
London,  and  condemned;  on  which  the  affured  demanded  of  the  defendant 
his  fubfcription,  which  he  refufed  to  pay  for  different  reafons  as  hereafter 
mentioned. — Several  merchants  in  France,  particularly  at  Bourdeaux  and 
Bayonne,  after  the  commencement  of  the  late  French  war,  fitted  out  a  great 
number  of  fhips  under  pretence,  and  appearance,  of  fending  them  to  the 
French  fetilements  in  America,  &c.  and  got  them  infured  to  their  full  value 
at  Marfeilles,  and  other  places  in  that  country ;  and  as  the  laws  of  France 
prohibit  every  perfon  from  making  larger  infurance  than  what  their  interejl  is, 
they,  without  difcovering  what  they  had  done  in  their  own  country,  requefled 
feveral  gentlemen  here  to  get  infurances  made  for  them,  often  to  three  or 
four  times  more  than  their  real  interefl  was :  and  the  faid  fliips  being 
generally  taken  or  lofl,  the  underwriters,  Avithout  fufpefting  any  fraud,  paid 
their  fubfcriptions,  by  which  means  the  French  concerned  in  thefe  pradices, 

got  more  than  they  could  have  done  by  any  fair  adventures. Thefe  forts 

of  tranfaftions  became  at  lad  fo  notorious  in  France,  that  Monf.  the  Count 
de  Maurepas,  direftor  of  the  marine  in  that  country,  about  May  1747,  took 
notice  of  it  and  fent  a  letter  to  a  merchant  of  Nantes,  defiringhim  to  enquire 
of  his  correfpondent  in  England  into  the  valuations  of  the  feveral  f^iips  and 
cargoes  mentioned  in  the  letter  (and  amongfl;  them  of  the  Heureux,  captain 
Beatrix  before  mentioned)  with  the  amount  of  the  infurance  made  thereon, 
declaring  in  the  faid  letter,  that  there  were  great  frauds  committed  by  perfons 
of  Bayonne  and  Bourdeaux,  in  fitting  out  fhips,  and  making  large  infurances 
thereon,  and  then  puttivg  thefe  JJiips  in  the  way  of  being  taken  by  the  Englifh. 
— This  gentleman  fent  a  copy  of  the  above-mentioned  letter  to  Mr.  Henry 
Loubier,  a  merchant  of  this  city,  who  generoufly  communicated  the  fame 
to  feveral  of  the  underwriters  ;  and  they,  in  confequence  of  this  advice, 
chofe  a  few  gentlemen  from  among  themfelves,  as  a  committee  to  enquire 
into  thefe  frauds  ;  and  they  found  that  feveral  gentlemen  in  England  had 
produced  infurances  to  be  made  on  French  Jhips  from  Bourdeaux  and  Bayonne 
to  the  Weft-Indies,  eidier  upon  the  terms  of  "  intereft  or  no  intereft,"  or 
"  without  further  proof  of  intereft  than  the  policy,"  to  the  amount  of  ioo,oool. 
of  which  near  the  half  were  difputable  loftes,  by  there  being  great  reafon  to 
believe  that  thefe  infurances  were  fraudulent,  and,  among  others,  the  fhip 
in  queftion  : — upon  which  a  bill  in  chancery  was  filed,  and  an  injunftion 
obtained  ;  but,  on  the  plaintift's  fwearing  he  knew  of  no  fraud,  the  injunc- 
tion was  dilfolved. — The  committee  fent  an  anfwer  to  Mr.  Maurepas's  letter, 
authenticated  by  a  notary  publick  ;  whereby  it  appeared,  the  fhip  and  cargo 
in  difpute  were  fold  in  England  for  788I.  lis.  3d.  viz.  the  cargo  for 
388I.  1  IS.  3d.  and  the  fliip  for  400I.  And  there  was  infured  on  her  in  England 
2,790!.  and  at  Marfeilles  it  was  found  upon  enquiry,  that  12,000  livres  had 

been    infured;  which,  reckoning   a  livre  at   iid.  amounts  10550!. The 

preceding  circumftances  were  oifered   to  the  court,  in  order  to    difcharge 

the 


2J2 


R        A        U        D. 


die  defendant  from  paying  the  infurance  ;  but  it  not  being  in  his  power  to 
prove  them,  though  he  fuppofed  them  matters  of  fafts,  and  it  appearing 
plainly  that  the  plaintiff  had  not  in  the  lead  been  guilty  of  any  fraud,  and 
the  policy  being  exprefsly  valued,  and  that  in  cafe  of  lofs,  the  alfured  fliould 
not  be  obliged  to  prove  his  interejl  by  any  other  means  whatfoever  fave  by  the 
prefent  policy  (as  is  mentioned  at  the  beginning  of  this  cafe)  and  had  paid  a 
premium  adequate  to  the  rifque,  which  to  the  underwriters  was  rather  lefs 
than  would  have  been  on  the  intereft  to  be  proved  ;  as  in  this  latter  cafe  they 
are  liable  to  averages,  whereas  on  policies  like  this  in  quellion,  of  interejl  or 
no  interejl,  they  are  folely  anfwerable  for   a  total  lofs ;  and  the   jury  found 

a  verdift  for  the  plaintiff. The  fame  was  tried  on  three  other  fhips  under 

the  fame  circumftances   (on  which  large  fums  had  been   infured)  and  had  the 
fame  determinations. — Lex  Merc.  red.  271. — Da  Cojla  v.Pauchon. 

13.     Case. — The  plaintiff  was  owner  of  the  fhip,  Love  and  Unity,  which 
he  let  out  to  freight  to  one  Bateman  Humphreys,  for  a  voyage  to  Lifbon  and 
back  again  ;    and  the  freighter  was  by  charter-party  obliged  to  viftual  and 
man  her,   which  he   did  accordingly,  putting  in  the  mafter  and  crew,  and 
embarking  himfelf,  proceeded  on  his  voyage,  and  arrived  fafe  at  Lifbon  :  he 
delivered  the  outward-bound  cargo,  and  put  the  fliip  up  for  London,  in  hopes 
of  getting  a  freight  home  ;  on  advice  of  which  the   owner  and   plaintiff  got 
her  infured   "  at  and  from   Lifbon  to   Gravefend,    warranted  to   fail   with 
convoy." — The  freighter  being  at  Lifbon,  meditated  a  fraud,  which  iniquitous 
fcheme  he  perpetrated  in  the  following  manner,  viz.  he  made  up  rolls  of  lead 
about  the  fize  of  moidores,  fix  and  thirties,  and  three  pound  tvrelves,  packed 
up  and  fealed  as  fuch  monies  are  ufually  packed  up  and  fealed,  and  made 
packages  likewife  in  imitation  of  thofe  of  diamonds,  and  fent  them  on  board, 
and  took  bills  of  loading  from  the  captain  as  for  real  money  and  diamonds  ; 
fent  thofe  bills  of  loading  home  to  different  merchants,  and  drew  confiderable 
fums  upon  the  credit  of  them,  as  well   as  large  infurances,  in  order,  as  it  is 
fuppofed,  to  have  lofl  the  fhip  in  her  voyage  home,  and  make  the  infurers 
pay  as  though  fuch  effects  had  aftually  been  on  board  :    but  the  captain,  as  it 
is  imagined,  fufpefting  fomething  of  the  fraud  before  the  fliip  failed,   opened 
one  or  more  of  the  packages,  and  difcovered  the  cheat,  finding  nothing  but 
the  lead  and  glafs,   inftead  of  gold  and   diamonds  ;    of  which,   he   giving 
information  to  the   Englifli  conful   there,   the   freighter  ran   away,  and  the 

captain  and  crew   left  the  fhip,    the  captain    coming  to  England. The 

plaintiff  on  knowing  what  had  occurred,  by  the  mafter's  arrival,  immediately 
applied  to  the  infurers,  and  defired  them  to  fend  to  Lifl)on  for  the  fliip,  or 
furnifli  him  with  money  to  go  and  fetch  her;  but  they  w^ere  of  opinion,  and 
accordingly  told  him  fo,  that  as  the  fhip  was  at  the  port  flie  was  infured  from, 
and  had  not  proceeded  on  her  voyage,  it  was  the  bufniefs  of  the  owner,  not  the 
infurers,  to  find  mafter  and  mariners  to  navigate  her ;  the  confequence  of 
which  was  that  the  fhip  lay  there  negleftcd  'till  flie  was  broke  to  pieces ; 
whereupon  the  plaintiff  brought  this  aftion  for  the  recovery  of  a  total  lofs. 

The  defendant  thinks  himfelf  not  obliged,   as  he  prefumes  the   words  in 

the 


1 


FRAUD.  333 

the  policy  at  and  from,  can  only  mean  to  give  the  fhip  leave  to  flay  at  the 
port  a  reafonable  time  to  procure  a  lading  and  take  it  in,  and  not  to  lie  there 
'till  fhe  rots,  without  attempting  the  voyage ;  as  this  would  be  to  make  the 
infurer  at  all  events  liable,  fooner  or  later,  whereas  he  fuppofed  he  under- 
took a  rifque  of  two  or  three  months  only. — Verdift  for  the  plaintiff'.* — Lex 
Merc.  red.  284.  at  Guildhall,  Hill.  1747. — Boutjlower  v.  Wilrner. 

14.  Case. — On  the  22d  of  February  1778,  the  plaintiffs,  Thomas 
Ratcliffe  and  Robert  Boff:ock,  of  Liverpool,  joint  owners  of  the  fliip,  Matty 
and  Betty,  John  Hewan,  Mafter,  and  her  cargo,  fent  the  two  following 
orders  for  infurance  thereon,  to  the  two  refpeftive  brokers,  in  London,  here- 
undermentioned,  viz. — To  Meffrs.  Tippell  and  Robins,  in  thefe  words  ; 
*'  we  received  your  card  enclofed  in  a  letter  from  Mr.  Wilkinfon,  with  an 
account  of  infurance  done  on  the  Matty  and  Betty,  John  Hewan,  commander, 
and  defire  youll  get  Bool,  more  done  on  the  goods ;  flaves  valued  at  30I.  per 
head,  ivory  and  palm  oil  as  ufual ;  at  and  from  the  coaff:  of  Africa  to  her 
port  or  ports  of  difcharge  in  the  Wefl:-Indies." — And  to  Mr.  Jofeph  Bland,  in 
thefe  words  ;  "  infure  600I.  on  fliip  ;  as  (lie  is  rather  long,  and  we  have  little 
infured  on  her,  we  beg  you  would  get  it  completed  immediately,  as  we  muff: 

hear  from  her  foon." The  faid  brokers,  not  being  furnifhed  with  any  other 

informations  concerning  the  fituation  of  the  fhip  than  what  thofe  letters  of 
order  contained,  found  fome  difficulty  in  obtaining  the  infurances  ;  which, 
however,  they  effefted  with  different  underwriters  (at  18  guineas  per  cent, 
being  the  common  premium)  between  the  27th  of  February  and  the  5th  of 
March  1778: — foon  after  which,  news  came  to  London  that  the  faid  ffiip, 
and  her  cargo  of  flaves  and  fome  ivory,  had  been  taken  by  an  American 
privateer,  near  Barbadoes :  and  the  underwriters  having  caufe  to  fufpeft  they 
had  been  deceived  and  unfairly  dealt  with  by  the  afl'ureds,  in  concealing  fuch 
intelligence  as  they  had  received,  refufed  to  pay  the  lofs  ;  and  being  fued  for 
the  fame,  found  it  requifite,  in  order  to  obtain  a  full  difcovery  of  the  cir- 
cumftances  in  the  knowledge  of  the  plaintiffs,  to  file  a  bill  in  equity  againfl: 
them  :  accordingly  by  their  anfwer,  and  by  the  evidence  on  the  trial  of  the 
caufe,  the  following  fafts  came  out,  viz. — that  by  the  plaintiffs'  inftruftions  to 
the  captain,  before  he  left  Liverpool,  they  acquainted  him,  that  letters  for 
him  from  themfelves,  and  from  their  correfpondents  in  the  Weft-India 
Iflands,  would  be  left  for  him  at  Barbadoes,  where  he  was  ordered  to  touch, 
and  to  fell  his  cargo,  if  he  could  do  it  fpeedily  for  ready  money,  or  bills, 
oiherwife  to  proceed  to  Jamaica,  which  it  was  their  opinion  would  be  his 
place  of  fale  : — that  the  fhip  failed  from  Africa  the  29th  of  Auguft  1777, 
called  at  St.  Thomas's  (off"  that  coa(l)  the  18th  of  September,  failed  from 
thence  the  ift  of  October,  and  was  taken  the  6th  of  December  near 
Barbadoes  ; — that  on  Saturday  the  2iff  of  February  1778,  in  the  morning,  a 
letter  was  received  by  Meffrs.  Brown  and  Jones,  at  Liverpool,  from  a  houfe  at 
Jamaica  (by  the  packet)  dated  the  27th  of  December  1777,   wherein  were 

*  It  is  prefumed  that  the  dcfertion  of  the  fhip  was  deemed  barratry. 

•j  M  thefe 


234  FRAUD. 

thefe  words,  "  Capt.  Penny,    who  arrived  here  the  nth  InJI ant,  informs  us 
that  the  Matty  and  Betty,  Capt.  Hewan,  Jailed  from  St.  Thomas's  the  zd  of 
OBober,  with  280  flaves,  and  35  he  took  on  freight ;    and  he  fuppofes  he  may 

have  fold  to  windward  ; — if  he  has  not,  all  is  not  well  with  him :" that,  on 

the  morning  about  ten  o'clock  (previous  to  fending  away  the  orders  for 
infurance,  which  was  in  the  evening)  of  Sunday  the  2 2d  of  February, 
Jonathan  Ratcliffe,  fon  of  the  faid  Thomas  Ratclifte,  was  informed  by 
William  Brownbill,  a  clerk  of  Meffrs.  Brown  and  Jones,  that  fome  intelligence 
of  the  Matty  and  Betty  was  received  by  them  from  Jamaica  : — that  in  the 
courfe  of  that  evening,  after  the  orders  for  infurance  (which  had  been 
direfted  by  Thomas  Ratcliffe)  were  fent  away  by  the  faid  Jonathan  Ratcliffe, 
his  father  was  told  what  Brownbill  had  faid  ;  who,  on  the  next  day,  the  23d 
of  February,  delivered  to  Thomas  Ratcliffe  himfelf  the  aforefaid  extraEl  of  the 
letter  from  Jamaica,  except  the  concluding  words  of  it,  viz.    "  If  he  has  not, 

all   is  not  well  with  him ;" which  the  plaintiffs    denied  the  having  been 

informed  of  till  after  advice  was  received  of  the  lofs  of  the  ffiip  ;  although  It 
appeared  that  the  merchants  at  Liverpool  ufually  converfed  with,  and 
communicated  their  intelligence  to,  each  other  daily  on  their  exchange  ;  and 
particularly,    that  on  the   21ft  of  February,    being  market-day,    they    had 

affembled  there,  after  the  letters  were  received  \yy\}i\t  packet  from  Jamaica : 

it  came  out  further  in  evidence,  that  the  plaintiffs  had  expreffed  themfelves 
concerning  the  faid  (hip,  in  letters  of  much  earlier  date,  to  the  faid  Jofeph 
Bland,  in  the  words  following,  viz. — November  the  24th,  1777,  they  gave  him 
orders  to  make  infurance  of  4,oool.  on  the  ffiip  and  her  cargo,  and  faid,  "  we 
may  expeft  news  of  her  from  the  firft  veffel  that  arrives  from  Jamaica, 
or  Barbadoes,  fo  that  we  have  m  time  to  lofe :'' — the  2d  of  December  1777, 
"  we  would  have  you  get  the  4,oool.  infured  as  foon  asyoupojjihlycan,  as  we  may 
expeft  news  by  the  firfl  ffiip  that  arrives  here  from  the  Well-Indies :" — the  2d 
of  January  1778,  "get  us  1,5001.  more  done;  we  fhould  be  glad  you  would 
get  it  done  immediately,  as  we  cannot  be  long  zuithout  news,  good  or  bad ;  your 

compliance  will  greatly  oblige  us :" moreover,  that  Mr.  Bland,   having 

with  difficulty  completed  the  infurance  ordered  on  the  2 2d  of  February, 
for  want  of  proper  informations  of  circumftances,  on  the  2d  of  March,  wrote 
to  the  plaintiffs  in  thefe  words,  "  I  beg  to  be  informed  what  are  the  lateft 
accounts  you  have  of  the  Matty  and  Betty." — to  which  they  anfwered, 
on  the  6th  of  March,  "  we  have  had  no  letter  from  her,  only  what  Capt. 
Fenny  zorote  home  from  Jamaica  fays,  JJie  was  well  at  St.  Thomas's,  the  2d 
of  06lober  laft,  with  280  flaves  on  board ;  we  fuppofe  they  zoere  zoatering, 
as  (he  had  more  flaves  than  we  expefted  them  to  purchafe,  and  cannot  tell  how 
lovg  Jlie  might  be  detained ;" — now,  this  anfwer  contained,  not  only  a  fludied 
concealment  of  the  extraft  of  the  letter  from  Jamaica,  which  had  been  aftually 
in  their  hands  ever  fmce  the  23d  of  February,  but  even  intentional  falfities ; 
for  that  letter  was  not  from  Capt.  Penny ;  the  (hip  was  not  well  at  St. 
Thomas's  the  2d  of  Oftober,  but  had  aftually  failed  from  thence  the  iff  of 
October,  fome  time  before  Capt.  Penny  had  touched  there  (who  had  been 
arrived  at  Jamaica  16  days  before  the  date  of  the  letter  from  thence)  and 
■-"^  though 


U        D. 


235 


though  the  plaintiffs  kneio  all  this,  they  faid,  "  -we  cannot  tell  how  long  Jhe 
might  be  detained :" — ^at  this  time,  they  were  uncertain  whether  MefTrs.  Tippell 
and  Robins  had  completed  their  infurance,  and  they  knew  that  thofe  brokers 

and  Mr.  Bland  conferred  together. It  appeared  alfo,  that  on  occafion  of 

giving  their  former  orders  for  infurance  to  Mr.  Bland,  they  had  faid  in  their 
letter  to  him  of  the  9th  of  December  1777,  "we  cannot  value  the  (hip  at 
more  than  700I.  or  800I.  as  fhe  was  valued  but  at  800I.  the  laft  voyage  but 
one,  when  one  of  the  owners  fold  out  his  fhare  on  this  valuation :'" — yet,  in 
their  letter  to  him  of  the  22d  of  February  1778,  after  the  receipt  of  the 
intelligence  from  Jamaica,   they  ordered  600I.  more  to  be  infured  on  her  to 

make  up  the  value  of  1,4001. Jonathan  Ratcliffe,  being  called  as  a  witnefs 

for  the  plaintill's,  faid,  he  had  not  heard  of  the  letter  from  Jamaica  till  the 
evening  of  the  2 2d  of  February,  after  he  had  fent  away  the  orders  for 
infurance  ;  but  Brownbill,  confronting  him,  pofitively  averred  that  he  informed 
him  of  it  at  ten  o'clock  in  the  forenoon  of  that  day,  being  Sunday,  on  the 
Rope-Walk :  Ratcliffe  being  afked  why  they  delayed  to  fend  their  orders  for 
infurance  till  the  22d  of  February .^^  anfwered,  they  often  delayed,  to  fave! 
the  premium  which  is  very  high  in  time  of  war : — why  they  did  not  fend,  with 
ihofe  orders,  the  extraft  of  the  intelligence  received  from  Jamaica  ?  anfwered, 
becaufe  they  thought  it  not  material  1 — 'why  then,  at  laft,  they  haftened  to  fend 
the  orders  on  the  Sunday  evening  ?     anfwered,  that   the    infurance    might  be 

done  in  time. It  appeared   further,   that  the  plaintiffs  had  written  a  letter 

to  one  Mr  Charles  Wilkinfon  (a  relation  and  agent  in  London  of  the 
aforementioned  Robert  Boftockl  who,  being  examined,  faid,  that  he  had 
received  it  about  the  27th  or  28th  of  February  ;  that  it  was  to  requeft  him  to 
fee  the  brokers  and  haften  the  making  of  the  infurances  :  that  it  informed  him 
"  the  fhip  was  well  at  St.  Thomas's  the  2d  of  Oftober ;"   but  that  he  could 

not  recolleft  the  further  contents  of  the  faid  letter,  having  burnt  it. Lord 

Mansheld  then  faid,  I  am  adonifhed  that  men  will  not  better  confult  their  own 
intereft,  in  fuch  cafes,  by  honeflly  informing  the  infurers  what  they  know  of 
the  circumftances  of  the  rifque,  inftead  of  concealing  them,  to  avoid  paying 
an  adequate  premium,  and  thereby  fubjefting  themfelves  to  fuftain  that  lofs 
which  they  endeavour  to  bring  upon  others  :  an  over-reaching  cunning  will 
commonly  redound  to  the  damage  of  thofe  who  exercife  it :  this  cafe  is 
glaringly  fraudulent  in  the  plaintiffs  : — from  their  having  ordered  feveral 
letters  to  meet  the  captain  at  Barbadoes  (from  whence  they  might  have  fooner 
heard  of  him  than  from  Jamaica)  and  by  their  letters  to  Bland  in  November, 
December,  and  January,  it  appears  that  they  had  fufficient  caufe  for  appre- 
henfion  about  the  fhip's  fituation,  before  February,  not  having  heard  of  her ; 
— yet,  they  did  not  merely  conceal,  and  keep  a  profound  filence  as  to  the 
intelligence  they  were  poffeffed  of  (during  all  the  time  the  infurances  were 
eifedling  in  London,  to  the  5th  of  March,  the  date  of  the  lajl  fubfcription) 
which  they  might  and  ought  to  have  fully  communicated  when  they  fent  their 
orders,  on  the  2 2d  of  February  ;  but  they  go  further,  and,  in  anfwer  to 
enquiries  exprefsly  made  to  them,  on  the  2d  of  March,  they,  on  the  6th  of 
March,  defignedly  mifreprefent  the  informations  they  had  received,    and  write 

abfolute 


'...6  F        R        A        U        D. 

■dh^oluie  fdl/iUcs  on  purpofe  lo  niHicad  : — it  happens  well  that  the  counftl  for 
the  plaintiffs  have  called  Ratclifle,  the  fon,  who  wrote  the  letters  of  order  by 
their  diredlion  ;  bccaufe  thereby  the  whole  deceit  becomes  more  nianifefl : 
although  the  fuuation  the  father  has  placed  hiiu  in  here  is  a  very  awkward 
one  ;  either  Ratclifle  or  Brownbill  \^  perjured  ;  but,  the  latter  had  no  intereft, 
no  motive,  to  depofe  a  falfliood  : — if  the  jury  think,  from  the  circumflances 
of  this  cafe,  that  it  was  3.  fraud  upon  the  iniurcr^;,  they  will  find  for  them. — 
Verdift  for  the  defendants. — At  Guildhall,  Monday  the  29th  of  May  1780 — 
Ratclijfe  &  Bojlock  v.  SJioolbrcd — the  Jlvnc  v.  Fletcher — i\\e./ame  v.  WeJJieU. 

15.  Ten  days  after  the  arrival  at  Liverpool  of  the  intelligence  from 
Jamaica,  mentioned  m  the  preceding  cafe,  the  following  order  was  fent  to 
London,  viz. — "  I  am  an  underwriter  on  a  policy  on  the  Matty  and  Betty, 
Hewan,  from  Africa  to  the  WeR-Indies,  and  (lie  is  not  arrived  according  to 
tlie  time  fhe  was  expctlcd:  Jlie  was  loell  at  St.  Thomas's,  in  Odober  lafl,  and 
{hips  have  been  often  known  to  have  had  as  long  pafl'ages  as  that  time :  if 
you  can  get  lool.  on  fhip  re-infarcd,  at  50  guineas  per  cent,  or  as  much 
lower  as  you  can,    may  do   it. — Liverpool,  3d  of  March   1778. — (figned) 

Jofeph  Fowden." The  merchant,  who  received  this  order,  thinking  himfelf 

authorifed  by  it  to  warrant  the  fhip  well  at  St.  Thomas's  in  all  Oclober, 
anfwered  that  "  he  had  effefted  the  re-infurance  with  fuch  warranty  :" — in 
reality,  he  had  refolved  to  take  the  rifque  himfelf;  and  afterwards,  being  ftill 
ignorant  of  the  circumjlances  of  it  (known  at  Liverpool  fo  long  before  as  the 
2ifl  of  February,  as  dated  in  the  preceding  cafe)  allowed  the  lofs  in  account 
with  Mr.  Fowden,  a  confiderable  time  prior  to  the  difcovery  of  them  in  the 
aforementioned  trials. — The  reader  will  make  his  own  comment  on  this 
tranfartion 

16.  Whereas  the  contracts  of  infurance  are  judged  to  be  contrafls 
of  good  faith,  wherein  no  fraud  or  deceit  ought  to  take  place  ;  in  cafe  it  is 
found  that  the  infured,  or  infurers,  captains,  fhippers,  pilots,  or  others,  ufe 

fraud,  deceit,  or  craft,  they  fhall  not  only  not  profit  with  their  faid  deceit  and 
craft ;  but  fiiall  alfo  be  liable  to  the  lofs  and  damage,  with  intereft,  occa- 
fioned  by  them,  and  be  corporally  pun  filed  and  corretled  for  a  terror  and 
example  to  others ;  even  with  death,  as  pirates,  and  manifefl  thieves,  if  it  be 
found  that  they  have  ufed  notorious  malverfation  or  craft. — Ordin.  of  Amft. 

17.  A-HY  perfon  focver  x\\7i]dr\g\\{c  of  artfice,  fraud,  ^m^  fallacy  in  any 
matter  of  infurance  or  average,  he  fliall  both  make  good  to  all  parties  con- 
cerned all  the  inconveniences  and  damages  they  may  have  received  thereby, 
and  likewife,  on  account  of  his  offence,  fhall,  according  to  the  circumflances 
of  every  particular  affair,  and  the  prefcription  of  the  penal  laws  enafted  in 
our  ordinance  againft  criminals,  be  punified  in  his  eflate,  honour,  and  life. 
— Ordin.  of  Stockh. 

18.    As 


»   .     w  ^V 


FREEDOM      OF      NAVIGATION. 


'^37 


18.  As  all  contrafts  of  affurances  are  held  and  efteemed  as  contrails  of 
good  faith,  in  which  no  fraud  or  deceit  (hould  be  praftifed  ;  therefore  in 
cafe  it  is  found  that  any  fraud,  cheat,  and  deceit,  has  been  ufed  by  the 
captains,  mailers,  pilots,  or  others,  either  on  behalf  of  the  afl'ured  or  alllirers, 
the  fame  fliall  not  only  reap  no  advantage  of  their  fraud  and  deceit,  but  fliall 
befides  be  obliged  to  make  good  all  lolfes,  damages,  and  intereft  occafioned 
by  them,  and  be  publickly  and  corporally  challifed  and  punifhed  for  a 
terror  and  example  to  others  ;  nay  even  with  death,  as  pirates  and  public 
robbers,  if  it  be  difcovered  that  they  have  been  guilty  of  any  remarkable 
offence  or  deceit. — Ordin.  of  Middlcb. 

ig.  If  the  infured  ^^dXlJecrete  either  infurances  or  bottomry  contracts,  and 
that  thofe,  together  with  what  he  may  have  declared,  do  exceed  the  value  of 
the  effefts  infured,  the  infurances  fhall  be  void,  and  the   infured  obliged  to 

pay  the  fum  borrowed,  though  the  fhip  be  taken  or  loft.-^ Moreover,  if  he 

lues  for  the  payment  of  the  fum  infured,  above  the  value  of  his  effefts,  or 

intereji,  he  fliall  be  exemplarily  punijlied. The  infured  (hall  always  run  the 

rifque  of  one  tenth  part  of  the  value  of  the  eflPefts  infured,  unlefs  there  be  an 

exprefs  fl:ipulation    in  the  policy  that  he   means   to  infure   the  whole. 

When  the  infured  goes  in  the  veffel,  or  is  the  owner  thereof,  he  is  obliged  to 
run  the  rifque  of  one  tenth  part,  notwithflanding  he  has  infured  the  whole. 

Neither  owners  of  (hips,  nor  mailers,  fliall  infure  the  freight  to  be  made 

by  their   veflels  ;    nor  fliall  tlie  merchants  infure  the  profit  they   expeft  to 
make  on  their  goods  ;  nor  the  feamen  their  wages. — Ordin.  of  France^ 

20.  In  cafe  of  fraud  on  the  part  of  the  afllired,  the  infurers  ought  to 
retain  the  premium. — 2  Valins  Comm.  137. 

21.  See  Prelim.  Difc.  15  to  20,  26,  33,  35,  37  &  feq.  Alteration  of 
Policy  &c.  Amicable  Judicatory,  Affociaiion,  Average,  Barratry,  Blank, 
Bottomry,  Concealment,  Contratl,  Court  of  Policies,  Damage,  Date,  Deceit, 
Document,  Double- Infurance,  Enemy,  Evidence,  Fire,  hfafficicncy.  Intendment, 
Intereji,  Intereft  or  no  Interef,  Lives,  Lqfl  or  not  Lof,  Mafer,  Neutral  Pro- 
perty, Out-Ports,  Payment,  Prior- Lfurance,  Profit,  Repair,  Return,  Ship  or 
Ships,  Valuation,  Wager,  War. 

FREEDOM     OF     NAVIGATION. 

I.  ALTHOUGH  it  cannot  be  expefted  that  merchants  fhould  ftudy 
■^^  thoroughly  all  the  laws  of  nations,  yet  it  may  be  fuppofed  that  mofl; 
of  them  know  fomething  of  the  contents  of  treaties  of  commerce  ;  and  that 
there  is  a  difference  in  the  treaties  of  commerce  between  England  and 
Denmark  and  Sweden,  and  between  England  and  Holland,  and  England  and 
France  and  Spain ;  and  that  only  between  the  four  laft,  the  rule  "  o^  free 
(hips  mTaV^ng  free  goods,  though  belonging  to  enemies,  except  contraband," 

had  been  reciprocally  ellabliflied; however,  for  the  ufe  of  thofe  who  may 

3  N  be 


238  FREEDOM      OF      N  A  A^  I  G  A  T  I  O  N. 

be  defirous  to  know  what  pafled  with  regard  to  navigation  in  former  wars,  as 
well  as  the  prcfent,  I  here  fubjoin  fome  remarkable  paffages  which  I  have  met 
with  on  this  fubjeftj  with  fome  obfervations  that  may  confiderably  elucidate  it. 

2.  From  the  letters  ^v•ritten  by  that  great  ftatefman  John  De  Witt, 
penfionary  of  Holland,  and  others  received  from  the  Dutch  ambafl'adors 
employed  at  the  courts  of  France  and  England  during  his  miniftry  (which 
were  publiflied  at  the  Hague  17^^,  in  four  parts  in  4to.)  it  appears  that  this 
minifter,  being  fenhble  that  Holland's  weakh  depended  chiefly  upon  keeping 
peace,  and  having  a  free  and  unmolelled  navigation  from  and  to  all  parts, 
laboured  hard  to  obtain  from  England  and  France,  by  particular  treaties  of 
commerce,  the  concelfion,  that  free  fliips  fliould  give  freedom  to  all  goods, 
even  thofe  belonging  to  enemies,  except  contraband. — His  letters  wrote  to, 
and  thofe  received  from,  William  Boreel,  in  16^^  (P'^'^  i-  page  77,  78.)  fnew 
that  France,  by  a  provifional  treaty  made  in  1646,  and  by  a  declaration  of 
the  French  king  in  1651,  having  allowed  this  rule  to  the  Dutch,  was  the 
firft  who  deviated  from  it.  Mr.  Boreel  writes  (page  66,  68.)  "  They  now  fay 
that  their  enemies  ought  not  to  be  protefted  nor  ferved  by  Ihips  of  the  States, 
in  carrying  their  goods :  that  fuch  goods  would  be  taken  out  of  the  Dutch 
fhips,  and  confifcated  as  good  prize:"  he  add':5,  "  and  the  French  may 
perhaps  even  fall  upon  maintaining  their  old  maxim,  Qiic  la  robe  d'  cnncmi 
covfifque  celle  d'  ami.'' — His  letters  wrote  to,  and  thofe  received  from,  William 
Nieupoort,  1656  (part  3,  page  226,  230,  332,  333,  340,  426,  427.)  flfiew  that 
the  Dutch  never  could  obtain  from  England,  during  the  time  of  Oliver 
Cromwell,  that  this  rule  fliould  be  allowed ;  and  it  feems  that  England 
confidering  herfelf  to  be  the  firfl:  of  the  maritime  powers,  thought  it  more 
political  that  Holland  fliould  always  remain  m  the  {iime  interell,  and  go 
along  with  her. — We  find  in  Aiftma,  or  Aitzcma,  36th  book  of  fl;ate  affairs 
and  of  war,  anno  1656,  that  upon  Mr.  Nieupoort's  fo  often  repeated  folici- 
tations  about  the  marine  treaty,  the  anfwer  given  by  the  Englifli  was,  that  the 
demand  of  "  free  fliips,  free  goods,"  and  paffport  to  their  form,  was  very 
unjuft  ;  and  the  rcafons  they  alleged  are  as  flrong  as  any  that  have  been 
made  ufe  of  fince. 

3.     Hi: RE  follow  extracts  from  the  letters  written   by  the  Dutch  minifters 
in  France  and  England,  to  the   penfionary  J.  De  Witt,  at  the  Hague,  from 

1653  to  1667. W.  Boreel,  the  Dutch  ambaffador  at  Paris,  to  the  penfionary, 

Dec.  16,  1653. — '•'  I  perceive  Avell  enough  that  France  would  go  further  in 
regard  to  the  marine  treaty,  which  I  am  foliciting,  if  the  war  with  Spain  was 
not  a  hinderance. — They  now  maintain  the  maxim,  that  their  enemies  muft  in 
no  manner  be  protefted  or  ferved  by  any  of  the  fliips  belonging  to  th^ 
fubjefls  of  their  High  Mightincffes,  for  the  carr)Mng  their  goods  ;  on  peril 
that  if  any  fuch  goods  be  met  with  in  Dutch  fliips,  they  fliall  be  made  good 
prize,  and  as  fuch  be  taken  out  and  confifcated :  which  however  is  departing 
from  a  law  ihev  maintained  in  former  times,  under  Francis  the  firft,  and 
Henry  the    tliird,   which   was    Que  la  robe  d'  ennemi  conjifque  celle  d' ami : 

whereas 


F  R  E  E  D  O  xM      OF      NAVIGATION. 


239 


wliereas  now  in  Dutch  fliips  the  goods  belonging  to  their  and  other  neutral 
fubjefts  fhall  not  be  confifcated.  I  have  made  all  poflible  endeavours  to 
obtain,  that  free  (hips  (liould  make  free  goods,  but  as  yet  without  fuccefs.'' 

From  Penfionary  De  Witt's  anfwer,  8th  of  January   1654. — "  I   obferve 

from  yours  of  the  26th  of  December  that,  notwithftanding  you  ufed  all  your 
endeavours,  you  could  not  obtain,  that  free  fliips  fhould  make  free  goods  ; 
whereupon  I  cannot  but  believe  that  the  French  miniflers  muft  mifapprehend 
the  matter,  or  you  explain  it  wrong ;  fince  in  the  draughts  of  the  treaty  fent 
over,  it  Hands  clearly  explained,  that  free  fhips  fliall  make  free  goods ; 
Q}Le  Us  navires  qui  traffiqueront  &  feront  librcs  rendront  aiijji  tout  Icicr 
charge  libre,  bien  qiC  il  y  eut  dedans  de  la  marchandije,   vicme  dcs  grains  & 

legumes,  appartenants  aux  ennemis." From  Mr.  Boreel's  letter,  Paris,  i/^th 

of  January  1654. — "'  It  is  true,  that  taking  the  fenfe  of  the  words  from  the 
firft;  article  of  the  provifional  treaty,  together  M'ith  the  18th  article  of  this 
propofed  treaty,  they  confirm  clearly  your  opinion  :  but  they  fay  that  by 
the  words,  a  free  (hip  fhall  make  free  goods,  are  only  meant  goods  of  friends, 
but  not  of  enemies :  and  in  the  fame  manner  they  mifconltrue  the  declaration 
of  the  29th  of  May  1651,  which  the  king  made  to  me,  and  which  is  now 
hib filling,  and  mull  fubfift  'till  we  come  to  a  nearer  treaty  of  marine  and 
alliance  :  it  fays,  le  roi  fait  defenfe,  &c.  de  nc  point  prendre  vi  aynener  dans 
les  ports  de  France  des  navires  Hollandois  charges  de  rnarchandifes,  quand 
mime  elles  appartiendront  aux  ennemis,  pourint  quits  netrafnj portent  pas  des 
troupes,  marchandi/es  de  contrabande,  &c.  what  can  be  clearer  than  thefe 
words  ?  but  the  people  here  interpret  them  as  they  pleafe,  and  make  ufe  of 
their  power  in  judging  and  executing,  and  although  I  Complain  continually, 

it  is  without  fruit  and  redrefs." By  thefe  letters  it  appears  clear  enough, 

that  the  French  firft  began  to  mifconftrue  the  fenfe  of  the  words  of  free  fliips 

making  free  goods. From  Ambaflador  William  Nieupoort's  letter,  London, 

the  12th  of  May  1656,  to  the  Penfionary  De  Witt. — "  I  am  afraid  that  the 
gentlemen  here  will  not  admit  in  the  treaty  of  marine,  the  rule  of  free  fliips 
making  free  goods,  and  vice  verfa  ;  nor  agree  to  the  formularies  of  paffports 
propofed :  however,  I  (liall  ufe  ray  beft  endeavours  towards  it,  and  as  foon  as 

I  can  obtain  any  thing  from  them  ujjon  paper,  I  fiiall  fend  it  over." From 

a  letter  of  the  penfionary,  26th  of  May  1656,  to  William  Nieupoort,  at 
London. — "  Their  High  Mightinelfes,  immediately  after  having  received  the 
draughts  fent  of  a  marine  treaty,  gave  it  to  the  commiflaries,  who,  upon 
taking  it  into  confideration,  quickly  difcovered  that  the  principal  point  where- 
upon this  treaty  fhould  be  built,  which  is  to  prevent  unjuft  fcarches  when 
they  meet  at  fea,  viz.  that  free  Jliips  make  free  goods,  was  left  out ;  and  it  is 
impracticable  for  the  Dutch  to  agree   to  it  in  the  manner  it  is  propofed  : 

wherefore,  Sec" From  a  letter  of  the  penfionary,   23d  of  February  iG^j, 

to  William  Nieupoort,  at  London. — "  And  I  can  aflure  you,  that  if,  by 
concluding  a  marine  treaty,  dieir  High  Mightinelfes  can  only  obtain  the  end 
propofed  in  their  laft  refolutions,  though  in  what  they  moll  defire,  namely, 
that  free  fliips  fliall  make  free  goods,  it  fliould  remain  deficient,  it  might 
take  away  fome  of  the  animofity,  and  prevent  the  perfons  at  the  helm  from 

barkening 


240  FREEDOM       OF      NAVIGATION. 

barkening  to  any  of  the  advances  made  by  Spain,  and  other  potentates,  to 

their    High    MightinefTes." Which    is   enough    to   (hew   that   the    great 

penfionary  De  Witt,  whilft  Cromwell  governed  in  England,  could  not  gain 
upon  him  his  favorite  maxim,  "  \\\dxfreejliips  fliould  make  free  goods." 

4.  However,  in  King  Charles  the  fecond's  reign,  this  rule  was  allowed 
by  the  treaty  of  marine  concluded  the  28th  of  June  1667 ;  and  on  this 
occafion  Sir  William  Temple,  in  a  letter  of  the  21  ft  of  May  1667,  to  my 
Lord  Ambaflador  Coventry,  writes,  "  Mr.  Godolphin  alRired  me  that  all  parts 
of  the  treaty  of  commerce  are  fo  much  to  our  defire  and  advantage,  that  he 
hoped  to  fee  many  a  rich  man  in  England  by  it." — It  would  feem  that 
Mr.  Godolphin's  maxim  was,  that  England  fhould  have  nothmg  fo  much  in 
view  as  a  free  navigation  for  her  merchants ;  and  indeed  this  is  certainly  of 
the  greateft  confequence  ;  but  the  way  to  have  made  it  effeftual  would  have 
been  to  be  always  watchful,  and  keep  a  naval  power  laperior  to  that  of  our 
neighbours,  and  not  to  fuffer,  at  the  time  of  treating,  part  of  our  naval 
ftrength  to  be  furprifed  and  burnt  at  Chatham,  the  15th  of  June,  by  the 
then  vigilant  and  powerful  Dutch  fleet:  by  which  attion,  it  feems,  they 
forwarded  the  conclufion  of  fuch  a  treaty  of  marine  and  peace,  as  they 
had  lonsj  defired  in  vain. 


'O 


5.  But,  as  merchants,  it  is  not  fo  much  our  bufmefs  to  enquire  whether 
it  was  good  policy  to  make  fuch  treaties,  as  to  know  how  long  they  were 
ftriftly  kept. — ^J.  Meerman,  one  of  the  Dutch  ambafladors  in  London,  in  a 
letter  to  the  penfionary,  dated  February  the  ift,  1668,  fays,  that  "  having 
complained  to  the  king  that  the  privateers  of  Oftend,  with  comminions  froni 
Spain,  difturbed  their  navigation,  his  majefty  anlwered,  that  he  had  alfo  heard 
of  it,  and  conhdered  it  as  afts  of  pirates  ;  and  that  he  would  give  orders,  if 
any  of  his  fubjecls  fliould  be  found  on  board  thofe  privateers,  to  have  them 
hanged." — Mr.  Meerman  further  lays,  '•  It  would  feem  as  if  thefe  privateers 
were  not  at  all  acquainted  with  the  fourteenth  article  of  the  Treaty  of  Marque, 
concluded  by  their  High  Mightinefles  with  the  king  of  Spain,    which  fays, 

that  free  flips  fiall  make  free  goods." In   King  William's  reign,    when 

England  and  Holland  were  allied  in  a  war  againft  France,  they  went  fome 
jfteps  further :  for  their  declarations  and  notifications  made  to  all  courts 
inform  us,  that  "  they  would  not  permit  any  neutral  nation  to  navigate  and 

trade    with    France   at    all. ' It  doth  not  appear   that    in  the   laft    wars 

England  went  further  beyond  the  bounds  of  neutrality  than  formerly. 
Hiftory  will  afford  examples  enough,  that  whatever  power  gets  the  better  at 
fca  or  land  in  time  of  war,  comiiionly  makes  the  moft  of  it ;  the  fair  trader 
always  fuffered  by  the  finifter  dealings  of  the  unfair  ones ;  and  fo  much  as 
one  fide  fludied  to  conceal  truths,  the  other  iludied  to  difcover  them. 

6.  By  an  extraft  from  Sir  Leonine  Jenkins's  Memoirs  (fee  Mafqiied 
Property)  neutral  merchants  will  perceive  that  during  the  war,  anno 
1676,  fome  ufcd  to  behave  in  the  fame  manner,  and  that  the  fame   things 

were 


FREEDOM      OF      NAVIGATION. 


241 


were  praftifed,  and  the  fame  conftruftions  made  in  our  courts  then,  as  in  the 
laft  wars :  we  do  not  find  that  in  France  or  Spam  they  have  been  dealt  with 
much  better,  akhough  they  might  juftly  have  expefted  more  favour,  fince 
thofe  crowns  having  hardly  had  any  (hipping  of  their  own  left,  wherewith  to 
carry  on  trade,  ought  in  good  policy  to  have  fet  the  example  of  letting  all 
neutral  (hipping  pafs  unmolefted,  which  would  have  been  much  to  their 
advantage,  if  they  who  remained  the  mailers  of  the  fea  would  have  given  the 
fame  freedom  : — but  might  not  thofe  who  fought  the  battles  afk,  what  fignifies 
our  being  mailers  at  fea,  if  we  fiiall  not  have  liberty  to  flop  fliips  from  ferving 
our  enemy  ?  and  when  we  examine  to  the  bottom  of  the  thing,  it  appears 
ver)'  evident,  that  fea-battles  are  not  fought  fo  much  to  kill  people,  as  to  be 
mailers  of  trade,  whereby  people  live  ;  and  by  Jlopping  the  fiipplies  of  our 
enemies,  to  compel  them  in  the  end  to  live  in  friendJJiip  xoith  us. 

7.  Ships  and  veffels  belonging  to  the  fubjefls  of  either  of  the  parties  may 
not  only  pafs,  traffick,  and  trade,  from  a  neutral  port  or  place  to  a  place  in 
enmity  with  the  other  party,  or  from  a  place  in  enmity  to  a  neutral  place ; 
but  alfo  from  a  port  or  place  in  enmity  to  a  port  or  place  in  enmity  with  the 
other  party,  whether  the  faid  places  belong  to  one  and  the  fame  prince  or 
flate,  or  to  feveral  princes  or  dates,  with  whom  the  other  party  is  at  war.-— 
Treaty  xoith  Roll.  1674. 

8.  The  like  freedom  of  commerce  and  navigation  was  agreed  upon  by 
the  treaty  of  1667,  with  Spain;  and  of  1676,  with  France;  and  confirmed 
by  the  fubfequent  and  other  articles  of  the  treaty  of  Utrecht. 

g.  It  (hall  be  lawful  for  all  and  fingular  the  fubje6ls  of  the  queen  of 
Great-Britain  and  of  the  moil  chriftian  king,  to  fail  with  their  (hips  with  all 
manner  of  liberty  and  fecurity,  no  diflinttion  being  made  who  are  the 
proprietors  of  the  merchandifes  laden  thereon,  from  any  port  to  the  places  of 
thofe  who  are  now,  or  fhall  be  hereafter  at  enmity  with  the  queen  of  Great- 
Britain  or  the  mod  chriflian  king :  it  fhall  likewife  be  lawful  for  the  fubjefts 
and  inhabitants  aforefaid  to  fail  with  the  fhips  and  merchandifes  aforemen- 
tioned, and  to  trade  with  the  fame  liberty  and  fecurity  from  the  places,  ports, 
and  havens,  of  thofe  who  are  enemies  of  both  or  of  either  party,  without 
any  oppofition  or  difturbance  whatfoever,  not  only  direftly  from  the  places 
of  the  enemy  aforementioned  to  neutral  places,  but  alfo  from  one  place 
belonging  to  an  enemy  to  another  place  belonging  to  an  enemy,  whether 
they  be  under  the  jurifdiclion  of  the  fame  prince,  or  under  feveral. — And 
as  it  is  now  llipulated  concerning  (liips  and  goods,  that  free  JJiipsJhall  alfo 
give  a  freedom  to  goods,  and  that  every  thing  Ihall  be  deemed  to  be  free  and 
exempt,  which  (hall  be  found  on  board  the  fliips  belonging  to  the  fubjeds 
of  either  of  the  confederates,  although  the  whole  lading,  or  any  part  thereof, 
fhould  appertain  to  the  enemies  of  either  of  their  majefties,  contraband  goods 
being  always  excepted;  on  the  difcovery  whereof,  matters  ftiall  be  managed 
according  to  the  fenfe  of  the  fubfequent  articles ;    it  is  alfo  agreed  in  like 

3  O  manne 


242  FREEDOM     OF     NAVIGATION. 

manner,  that  the  fame  liberty  be  extended  to  perfons  who  are  on  board  a 
free  (hip,  with  this  condition,  that  although  they  be  enemies  to  both  or  to 
either  party,  they  are  not  to  be  taken  out  of  that  free  (hip,  unlefs  they  are 
foldiers,  and  inatlual  fervice  of  enemies.— Tr^fli^  v^ith  France,  1713. 

10.  As  it  appears  by  art.  23,  in  the  treaty  of  1654,   with  Portugal,  that 
Oliver  Cromwell  agreed  with  the  Portuguefe  to  the  rule  of  "freejliips  making 
free  goods"  which  he  afterwards  would  not   allow  to  the  Dutch,   it  would 
feem  that  he  had  not  yet  well  confidered  how  inconfiftent  it  was  for  a  nation, 
whofe  weight  chiefly  lay  in  its  fuperiority  of  maritime  ftrength,  to   allow 
this  rule  to  any  one ;    or   elfe    he  muft  have   more    in  view,  viz.  that  the 
Englifh  nation  fhould  reap  the  chief  benefit  of  the  trade  from  their  Eaft  and 
Wefl-Indies,  whilft  they  were  contefting  for  the  pollefTions  thereof  with  the 
Dutch. — The  Portuguefe  in  their  fituation  at   that  time  muft  have  found  it 
difficult  to  fupply  them  themfelves ;    and  therefore  might  well  allow,  art.  11, 
"  that  the  people   and  inhabitants  of  Great-Britain  might  navigate  and  trade 
freely   and  fafely  from  Portugal   to  Brazil,    paying  the  duties   and  cuftoms 
which  others  pay  who  trade  into  thofe  countries :"  and  "  that  they  fhould 
have  the  fame  freedom  as  had  been  granted  by  any  former  treaty,  or  fliould 
be  granted  hereafter,   to  the  inhabitants  of  any  other  nation  in  alliance  and 
friendfiiip  with  that   crown  :" — but  this  freedom  ceafe.d   when  they  had   no 
longer  conteft  about  their  poffelfions  ;   for,   as  their  friends  and  allies  monopo- 
lized the  trade  of  thofe  places  where  they  had  been  admitted,  and  got  footing 
in  the  Eaft  and  Weft-Indies,   the  Portuguefe  excluded  them,  in  return,   from 
trading  to  thofe  fettlements  which  they  ftill  retained. 

11.  Remarks. — The  treaty  of  Utrecht,  with  France,  1713,  was  not 
confirmed  by  that  of  Aix-la-Chapelle  1748;  a  fort  of  tacit  acknowledgment 
of  that  right  the  French  had  affumed,  as  it  fuited  their  intereft,  of  rejefting 
the  whole  of  the  former  treaty,  as  fome  articles,  particularly  the  9th, 
could   not,  by   the   exprefs   tenor   of  them,   take   place  without   an  aft  of 

parliament ;     which,   however,   was   never   pafTed. The    aforementioned 

treaty  with  Holland  of  1667,  was  confirmed  by  the  treaty  of  1674  ;  which  is 
now  the  maritime  regulation  between  the  two  powers. — By  the  8th  article  of 
this  treaty  it  is  agreed,  "  that  all  which  fliall  be  found  on  board  the  veffels 
belonging  to  the  fubjefts  of  either  of  the  contracting  parties,  fliall  be  accounted 
clear  and  free  although  the  whole  lading,  or  any  part  thereof,  fhall  by  juft 
title  of  property  belong  to  the  ene77iies  o[  the  other,  contraband  goods  07ily 
excepted." — Here,  as  in  the  treaty  of  Utrecht,  the  difpute  is  entirely  owing 
to  the  general  terms  of  the  ftipulation ;  one  fide  taking  them  in  their  full 
extent,  while  the  other  infifts  upon  fuch  reftriftions  and  limitations  to  be  put 
upon  them,  as  right  reafon  and  the  nature  of  things  neceffarily  require  ;  and 
therefore,  in  1758,  when  the  French,  finding  themfelves  unable  to  carry  on 
their  own  trade  in  their  own  bottoms,  refolved  to  employ  the  Dutch,  and 
not  only  exempted  their  veflels  from  the  tax  of  50  fous  per  ton,  but  opened 
to  them  all  their  ports  in  America,  the  mifchief  of  fuffering  the  rule  to  pafs 


FREE     GOODS    AND     FREE     SHIPS.  243 

in  general  terms,  became  notorioufly  manifcft ;  and  Great-Britain  refolved 
to  make  ufe  of  thofe  means  which  God  had  put  into  her  hands  to  remedy  it : 
accordingly  great  numbers  of  thofe  Dutch  veflels  were  taken,    and  fome  of 

them  adjudged  to  be  lawful  prizes  by  our  court  of  admiralty. The  States 

being  extremely  vexed  to  fee  the  net  which  they  had  fo  cunningly  woven, 
and  fpread  over  us  by  the  treaty,  now  prove  at  length,  upon  the  firfl:  trial, 
too  weak  to  hold  us,  and  forcibly  broken,  did  not  fpare  to  make  heavy 
complaints  of  the  breach.  Similar  proceedings  have  lately  given  rife, 
upon  occafion  of  our  prefent  war  with  France,  to  a  warm  contefl  between 
the  two  mod  natural  friends  in  Europe. — Sir  Jofeph  Yorke  prefented,  on  the 
21ft  of  March  1780,  a  very  ftrong  memorial  io  the  States  General,  in  which 
he  "  enumerates  the  various  points,  in  which  they  have  violated  the  treaty, 
by  granting  convoys  to  naval  llores  going  to  France,  &c.  ;  and  the  abfolute 
filence  they  have  kept  as  to  the  formal  demands  of  ftipulated  fuccours  from 
the  republic  :" — but  their  high  mightineffes  ftill  giving  no  anfwer  thereto,  our 
court  publin^ed,  on  the  17th  of  April  1780,  a.  declaration ,  "  that  the  fubjefts  of 
ihe  United  Provinces  are  henceforward  to  be  confidered  upon  the  fame  footing 
with  thofe  of  other  neutral  ftates  not  privileged  by  treaty  ;  and  his  majefly  doth 
fufpend,  provifionally,  till  further  order,  all  the  particular  ftipulations  refpefling 
the  freedom  of  navigation  and  commerce,  in  time  of  war,  of  the  fubjefls  of 
the  States  General,   &c.  and  more   particularly  thofe  contained  in  the  treaty 

of  1674." On  the  3d  of  April  1780,  however,  a  memorial  \va.s  prefented 

to  the  States  by  Prince  Gallitzin,  on  the  part  of  the  emprefs  of  Ruffia,  with 
a  copy  of  a  very  extraordinary  declaration,  which  (he  had  made  to  the  belli- 
gerent powers  :  purporting,  "  that  flie  was  determined  to  maintain  a  free 
trade  and  navigation  of  her  fubjefts,  and  not  to  fufFer  either  to  be  hurt  by 
thofe  powers  ;  that  her  definition  of  the  limits  of  2,  free  trade,  is  founded  upon 
the  cleared  notions  of  natural  right,  and  that  what  fhe  called  contraband  is 
literally  taken  from  the  treaty  between  Ruffia  and  Great-Britain  (17,34) — that 
fhe  invites  the  States  General  to  make  a  common  caufe  with  her  ;  and  had 
made  the  fame  invitation  to  the  courts  of  Copenhagen,  Stockholm,  and  Ltjhon,  in 
order  that  by  their  united  endeavours  a  natural  fyftem,  founded  on  juftice, 
might  be  eftablifhed  and  legalifed  in  favour  of  the  trade  of  neutral   nations, 

and  ferve  as  a  rule  for  future  ages." A  negociation  has  accordingly  been 

opened  with  the  above-mentioned  courts :  and  it  remains  to  be  feen  how  far 
a  fyftem,  hitherto  deemed  fubverfive  of  the  general  law  of  nations,  will  be 
carried  into  execution. 

12.  See  Claim,  Conjifcation,  Contraband,  Document,  Enemy,  Flag,  Hojlility, 
Law  of  Nations,  Mafqited  Property,  Navigation,  Neutral  Ship  or  Property^ 
Paffport,  Property,  Ships  of  War,  Treaty,    Turkey,    War. 


FREE     GOODS     AND     FREE     SHIPS. 

See  Freedom  of  Navigation. 

FREE 


e  m 
or 


244  F  R  E  I  G  H  T     AND     FREIGHTER. 

FREE       OF       AVERAGE. 

1.   T  F,  by  the  policA',  the  infurers  are  free  of  average,  they  are  not  llabi 
-■-  cafe  of  flranding,   or  other  accidents,    for  any  damage,    repairs, 
charges,  when  the  fhip  is  got  off",  and  the  flranding  has  not  been  abfolute  and 
complete,  fo  as  to  authorifean  abandonment. — 2  Valins  Conim.  102. 

2.     See  Prelim.  Di/c.  43.  Abandonment,  Average,  Capture,  Corn,  General 
Average,  Stranding. 

FREIGHT     AND     FREIGHTER. 

1.   O  O  ME  laws  prohibit  the  comprehending  in  the  infurance  of  fhips,  any 
^    of  their  rigging  or  tackle,  as  being  fubjetl  to  be  worn  out,  or  their 
provifions,  or  ammunition,   becaufe  of  their   conftant   confumption.      The 
infuring  of  freights  is  allowed  by  the  laws  of  Ibme  Hates,  and  forbid  by  thofe 
of  others  :    but  a  medium  in  this  affair  would  be  bed  ;    that  is,  proper  diftinc- 
tions  ought  to  be  made. — With  regard  to  fliips  that  are  intended  for  earning 
freights,   care  fhould   be  taken  that  the  freight,  and   the  expences  of  their 
fitting-out,  be  not  both  infured,   or  a  double-infurance  made  :   but  an  abfolute 
prohibition  to  infure,  under  the  one  or  the  other  title,  mufl;  be  inconvenient 
for  trade,  becaufe  there  are  undertakings  for  remote  voyages  and  expeditions, 
where  the  expences  of  fitting-out  the  fliip,  or  her   freight,  by  far  furpafs  the 
value    of  the   fliip  itfelf ;    and   if  the  infuring  them   were  not  permitted,  it 
would  prevent  the  extenfion  of  trade,  and  thwart  many  important  enterprifes. 
— The  view  in  making  fuch  limitations  could  only  have  been,  to  hinder  any 
one   from  premeditately  expofing  a  fliip  and  cargo  to  danger,  in  hopes  of 
becoming  a  greater  gainer  by  their  lofs  or  damage,  than  by  their  fafe  arrival 
at   their  deflined  port :    but  as   it  cannot  be  very  difficult  for  any  infurer, 
judge,  or  arbitrator,  that  may  be  appointed  to  regulate  damages,  to  dift:in- 
guifli  in  what  ftate  or  condition  the  thing  was  at  the  time  of  it's   infurance  ; 
and  he   can  reafonably  gttefs,  what  it  would  be  when  the  (hip  arrived  ;   there 
does  not  feem  to  be  any  necefliity  for  a  legal  rcllriftion  of  infuring  in  either 
cafe :  for  it  will  be  eafy  to  afcertain,  in  cafes  of  infurance,  from  the  charges  of 
fitting  a  fliip  out,  what  allowances  mufl:  be  made  for  xcear  and  tear,   and  what 
may  be  confumed  in  the  ordinary  courfe  of  the  voyage,  over  and  above  what 
the  freight  may  bring  in ;    and,  if  this  is  infured,  what  ought  to  be  dedufted 
for  men's  xcoges  unpaid,  and  provi/ions  unconfumed  :   which  is  what  has  been 
introduced   in    London,   under  the  expreflion   of  "  net  freight ;"  though  it 
feems  not  to  be  yet  univerfally  underllood,   as  may  appear  by  a  cafe,  which 
occurs  to  me  of  an  infurance  made  in  London,  with  this  claufe. — Both  fliip 
and  cargo  were  entirely  loft ;  and  the  infured  infifted  on  recovering  the  full 
freight  according  to  bills  of  lading,  dedu6ting  only  thofe  wages,  and  port 
charges,   the    fliip    mud   have    paid   if  flic    had   arrived  in  fafety.     This  is 
conformable  to  what  the  Amflerdam  ordinance  fays,   viz.  "  That  freight  and 
the    ordinary    charges,    ufually    called   common   average    (deducing    mens 

wages, 


FREIGHT     AND     FREIGHTER. 


^4^ 


wages,  and  other  charges  that  muft  have  been  paid  out  of  it,  if  the  fhip  had 
arrived)  may  be  infured,  and  recovered  fo  far  as  it  can  be  proved  that  the 
gain,  or  overplus  from  the  voyage,  would  have  amounted  to." — To  which 
I   think   might  have   been  added,   "  dedufting  alfo  the   port  charges,  &c. 

outwards  and  for  wear  and  tear" -What  properly  ought,  to  be  underflood 

by  net  freight,  or  what  can  be  called  the  gain,  or  the  overplus  of  a  voyage^ 
the  reader  will  perceive  by  the  following  example  ; — viz. 

2.     Suppose  a  new-built  fhip  at  London  with  all  her  apparel  to  coft     -     -     -    ^2,000 
Six  months  provifions  for  the  men  (on  a  voyage  for  Cadiz)    ---.----72 

Two  month's  wages  advanced  the  men  at  22I.  is      -----------     .44 

River  charges,  in  her  outward-bound  voyage,  in  all      ----------     24 

Premium  of  infurance  from   London  to  Cadiz  on  the  fliip  valued  at    2,167!.  at  1  ;|: 

per  cent.      ----------------------27 

£2,167 

So  that  the  infured  lofes  nothing  of  his  principal,  or  firft  coft,  fuppofmg  the  fliip  to  be  loft. 
Let  us  now  fuppofe  that  300I.  was  infured  upon  the  net   freight ;  and   that  it  was    proved 

by  the  bills  of  lading  that  the  fhip  made  freight  to  Cadiz  -----  Dollars  2,000 
The  query  will  be,  what  could  be  recovered  ? — and  in  order  to  form  a  reply, 

the  fubfequent  deduflions  muft  be  made,  viz. 
One-third  of  the  inward  port  charges  and  pilotage,  called  common  average, 

fuppofed  to  be  200  dollars       --------------     66 1 

One  month's  wages  22I.  is  at  6  dol.  per  pound  fterl.    --------  132 

A  fmall  matter  for  wear  and  tear  of  the  fliip    -------,--      — _       198 1 

Dollars  1,801^ 
At  6  dollars  for  a  pound  fterling  is    £^300^ 

Now  if  all  the  outward-bound  charges  were  comprehended  in  the  above  valuation  of  the 
fliip  infured,  as  is  commonly  done,  then  there  ought  to  be  a  further  deduflion  of  half 
the  provifions  confumed,  36I.  44I.  24I.  27I.  and  the  premium  of  300I.  infured  on  the 
freight,  3I.  15s.  in  all  134I.  15s.  from  the  freight  as  above: — fo  that  in  ftriftnefs  the  net 
profit  of  the  voyage,  and  what  ought  to  be  recovered  for  the  300I.  infured  upon  the 
freight,  does  not  exceed  165I.  5s. 

3.  Upon  the  footing  of  the  French  ordinance,  which  forbids  infuring  on 
freight,  a  perfon  is  not  fully  fecured  againft  lofs  in  refpe6l  to  general 
averages,  which  may  happen  in  infurances  on  fhips,  when  the  expences  of 
iitting-out  are  included,  and  affured  together  with  the  value  of  the  fhip ; 
and  as  thefe  charges  of  fitting-out  are  naturally  difburfed  for  the  fake  of  the 
I'reight,  and  are  funk  again  in  the  fame,  it  would  be  therefore  always  moft 
advifable,  to  infure  the  value  thereof  abroad  upon  the  freigbt. — The  making 
infurance  upon  the  freight  on  this  principle  appears  to  be  almoft  necefl'ary, 
and  to  be  attended  with  lefs  evil  confequences,  than  including  the  whole 
expence  of  fitting-out  in  the  valuation  of  the  fliip.  When  the  valuation  is  thus 
done  in  an  infurance,  and  it  afterwards  proves  neceUary,  that  fome  part  be 
flung  over-board  (towards  which  the  infurer  upon   the   fliip  contributes,   m 

3  P  France,. 


246  FREIGHT     AND     FREIGHTER. 

France,  only  for  half  of  the  grofs  or  the  whole  net  freight)  the  mafter  or 
owner  might  in  that  cafe  think  it  fometimes  more  for  his  intereft  rather  to 
let  the  fliip  run  afhore,  than  to  fave  her  either  by  throwing  fome  things 
over-board,  or  partly  unloading  of  her  :  for  when  the  fhip  was  flranded, 
they  could  recover  from  the  infurer  the  payment  for  the  value  of  the  fhip  and 
the  whole  expence  of  fitting-out,  as  well  as  for  the  freight  of  the  part  that 
was  faved,  which  would  be  clear  profit ;  on  the  other  hand,  in  cafe  oS.  jdtifon, 
they  would  not  be  entitled  to  demand  from  the  infurers  the  value  of  the  fhare 
that  falls  upon  the  freight  in  the  general  contribution,  although  they  were 
infured   to  the  full,  by  which  means  they  might  frequently  fall  a  good  deal 

fhort. In  this  particular  point,  the  French  ordinance  of  Lewis  xiv.    1681, 

which  is  fo  well  digefled  in  other  refpefts,  feems  to  want  amendment ;  either  by 
altering  that  part  of  the  law,  which  utteily  forbids  the  making  infurances  on 
freight ;  or  that  part  of  the  law,  which  direfts  that  in  cafe  of  jettifon  the 
fhip  fhall  contribute  no  more  than  half  of  it  s  freight,  and  half  of  it's  own 
value  ;  for  according  to  this,  notwithftanding  the  owners  fliould  fully  infure 
their  fhip  and  outfet,  and  pay  a  premium  for  the  fame,  it  feems  by  the 
wording  of  the  law,  as  if  they  could  not  recover  from  their  infurers  any 
thing  of  what  the  fhip  (hould  contribute  for  the  freight,  becaufe  tliat  is 
prohibited  from  being  infured.  But  as  it  is  expreffed,  that  ammunition  and 
provifions  may  be  comprehended  in  the  value  of  the  fliip,  and  therefore  may 
be  infured,  and  as  the-fe  are  articles,  which  may  be  looked  upon  as  loft  or 
funk,  but  are  regained  by  the  freight ;  the  infurer,  who  received  a  premium 
thereon,  ought  to  pay  what  they  have  contributed  to  the  average,  though 
fuch  contribution  may  have  been  made  under  another  denomination. 

4.  When  a  fhip  is  loft,  and  that  the  cargo  faved  out  of  her  is  fold  at  the 
fame  place  where  the  wreck  happened,  the  French  ordinance  fays,  that 
"  then  freight  fliall  be  allowed  m proportion  to  the  voyage  advanced:'' — but 
It  is  not  at  all  places  poftible,  or  not  fo  beneficial,  to  fell  the  goods,  or  to  end 
the  voyage  juft  where  they  are  faved ;  and  when  not,  the  mafter  of  the  ftiip 
ought  to  carry  them  to  the  place  where  he  was  bound  for ;  and  he  is  to  be 
confidered  for  the  freight  as  a  party  concerned  in  goods,  and  for  fo  much  as 
the  freight  amounts  to,  he  undoubtedly  ought  to  bear  an  equal  proportion  of 
the  charges  of  the  falvage  with  the  owners,  as  likewife  his  proportion  of  what 
damage  the  goods  faved  had  fuftained. — 1  Mag.  376. 

5.  There  is  a  moft  juft  doclrine  laid  down  by  Adrian  Vcrxoer,  in  his 
curious  annotations  upon  the  fea-laws  of  Philip  ii.  p.  137. — viz.  "  That 
whatever  diminution  the  ftiipper  of  goods  on  board  fuftained  by  ftiipwreck 
and  falvage  charges  (by  computing  what  fuch  goods  would  have  produced 
had  they  arrived  fafe)  the  fame  proportionate  diminution  the  mafter  of  the 
(hip  ought  to  bear  in  his  freight." 

6.  Case. — ^The  plaintiff  infured  on  ftiip  and  freight,  at  and  from  Jamaica 
10  Briftol :  a  cargo  was  ready  to  put  on  board;  but  the  ftiip  being  careening, 

in 


FREIGHT    AND    FREIGHTER. 


H7 


in  order  for  the  voyage,  a  fudden  tempeft  arofe,  and  flic  and  many  others 
were  loft :  the  rigging  and  parts  of  her  were  recovered  and  fold,  and  the 
defendant  paid  into  court  as  much  upon  an  average  as  he  was  liable  to 
for  the  lofs  of  the  (hip  : — the  plaintiff  infifted  to  be  allowed  600I.  for  the 
freight  the  fhip  would  have  earned  in  the  voyage,  if  the  accident  had  riot 
happened ;  but  as  the  goods  were  not  aftually  on  board,  fo  as  to  make  the 
plaintiff's  right  to  freight  comvience,  the  chief  juftice  held  he  could  not  be 
allowed  it. — Strange,  1251.    ig  Geo.  2. — Tongue  v.  Watts. 

7.     Case. — This   was   a   fpecial   cafe   from   the   laft   Devonfliire   affizes, 

referved  by  Lord  Mansfield,   who  went  that  circuit,   laft  fummer. The 

defendant,  Lyde,  fliipped  a  cargo  of  i,.50i  quintals  of  fiffi,  at  the  port  of  St. 
John's  in  Newfoundland,  on  board  the  fliip  Sarah,  belonging  to  the  plaintiffs, 
to  be  carried  to  Lifbon  :  the  plaintiffs  were  to  be  paid  freight,  at  the  rate  of  two 
fhillings  per  quintal ;  the  original  price  of  the  faid  cargo  was,  at  Newfound- 
land, ten  {hillings  and  fix-pence  fterling  per  quintal :  the  plaintiffs  had  alfo 
on  board  the  faid  Sarah  a  cargo  of  945  quintals  of  fifli,  which  was  their  own 
property :  the  fhip  failed  from  the  port  of  St.  John's,  on  the  27th  of  November 
1756,  and  had  proceeded  feventeen  days  on  her  voyage,  and  was  taken  on  the 
14th  of  December  following,  within  four  days  fail  of  Lift^on,  by  a  French  ftiip  ; 
and  the  captain,  the  other  officers,  and  all  the  crew,  except  one  man  and  a  boy, 
were  taken  out  of  the  Sarah,  and  put  on  board  the  French  ftiip :  the  fhip 
Sarah  was  retaken  on  the  17th  of  the  fame  December  1756,  by  an  Englifh 
privateer,  and  on  the  29th  of  December  1756,  brought  into  the  port  of 
Biddeford  in  Devonftiire :  the  plaintiffs  having  infured  the  fhip  and  their 
part  of  the  cargo,  abandoned  the  fame  to  the  infurers ;  but  the  freight,  which 
the  owners  were  entitled  to,  was  not  infured :  the  defendant  had  his  goods  of 
the  recaptors,  and  paid  them  five  fhillings  per  quintal  falvage,  at  the  rate  of 
ten  fhillings  per  quintal  value  :  the  fifli  could  not  be  fold  at  all  at  Biddeford, 
nor  at  any  other  port  in  England,  for  more  than  ten  fhillings  per  quintal, 
clear  of  all  charges  and  expenccs  in  bringing  them  to  fucli  port ;  and  the 
moft  beneficial  market  (in  the  apprehenfion  of  every  perfon)  for  difpofing  of 
the  Hiid  cargo  of  fifh,  was  at  Bilboa  in  Spain  ;  to  which  place  the  defendant 
fent  it  in  the  March  following ;  and  there  was  no  delay  in  the  defendant  in 
fending  the  faid  cargo  thither,  where  it  was  fold  for  five  fliillings  and  fix- 
pence  per  quintal,  clear  of  the  freight  thither,  and  of  all  expences  attending  the 
fale  there :  the  freight  from  Biddeford  to  Lifbon  is  higher  than  from  Newfound- 
land to   Lifbon  :    from  the  time  of  the  capture,  the  whole  way  the  fhip  was 

afterwards  carried,  was  out  of  the  courfe  of  her  voyage  to  Lifbon. The 

queftion  was,  "  whether  the  plaintiffs  are  entitled  to  any,  and  what  freight ;  and 
at  what  rate,  and  fubjeft  to  what  deduftion  ? — Molloy,  263,  lays  down  the  rule, 
that  when  the  difability  of  the  fhip  is  inevitable,  or  accidental,  without  fault  of 
the  owner  or  mafter,  freight  is  due,  if  themafterwill  either  mend  his  fhip,  or 
freight  another :  but  if  the  merchant  will  not  agree  to  that,  then  "  freight  is 
due  for  fo  much  as  the  ftiip  hath  earned," — b.  2.  c.  4.  f.  4. — Molloy,  259,  puts 
the  fame  cafe,  of  a  fhip  taken  by  the  enemy  and  retaken,  and  not  otherwife 

incapacitated  ; 


£48  FREIGHT     A  In  D     FREIGHTER. 

incapacitated ;  and  fays,  that  after  reflitution,  fhe  may.proceed,  and  the  entire 
freight  will  become  due  :  but  the  mafter,  though  he  may  provide  another  fhip, 
is  not,  at  all  events,  abfolutely  obliged  to  it;  he  has  his  option:  and  the  cafe  of 
Lutzuidge  &  al.  v.  Grey  6?  al.  fliews  that  the  mafler  is  entitled  pro  rata  iLineris, 
though  he  does  not  proceed  on  his  voyage  ;  and  there  he  had  an  allowance 

pro  rata,  though  he  refufed  to  carry  the  goods  any  further. Lord  Mansfield 

faid,  thdt  though  he  was  of  the  fame  opinion  at  the  aihzes  as  he  was  now, 
yet  he  was  defirous  to- have  a  cafe  made  of  it,  in  order  to  fettle  the  point  more 
deliberately,  folemnly,  and  notoriouOy,  as  it  was  of  fo  extenfive  a  nature  ; 
andyfjefpecially  as  the  viaritune  law  is  not  the  law  of  a  particular  country, 
but  the  general  law  of  nations  ;  "  noneritalia  lex  romae,  alia  athenis,  alia  nunc, 
alia  pojfthac  ;  fed  et  apud  omnes  gentes  et  omni  tempori,  una  eademque  lex 
obtinebit :"  he  faid,  before  he  entered  into  it  particularly,  he  would  lay  down 
a  few  principles,  z;iz. ;-— 'if  a  freighted  Qiip  becomes  accidentally  difabled  on  it's 
voyage  (without  the  fault  of  the  mafler)  the  mailer  has  his  option  of  two  things  ; 
either  to  refiit  it  (if  that  can  be  done  within  convenient  time)  or  to  hire  another 
Iliip.tp  carry  the  goods  to  the  port  of  delivery  ;  if  the  merchant  difagrees  to 
this,  and  will  not  let  him  do  fo,  the  mailer  will  be  entitled  to  the  whole  freight 
of  the  full  voyage:"'  and  fo  it  was  determined  in  the  houfe  of  lords,  in  that 
cafe  of  Lutwidge  &  How  v.  Grey  &  al : — as  to  the  value  of  the  goods,  it  is 
nothing  to  the  mafler  of  the  fhip,  "  whether  the  goods  are  fpoiled  or  not, 
provided  the  freighter  takes  them  :"  it  is  enough  if  the  mafler  has  carried  them  ; 
for  by  doing  fo,  he  has  earned  his  freight :  and  the  merchant  lliall  be  obliged  to 
take  all  that  are  faved,  or  none  :  he  fhall  not  take  fome,  and  abandon  the  reft  ; 
and  fo  pick  and  chufe  what  he  likes,  taking  that  which  is  not  damaged,  and 
leaving  that  which  is  fpoiled  or  damaged  ;  "  if  he  abandons  all,  he  is  excufcd 
freight ;  and  he  may  abandon  all,  though  they  are  not  all  lofl"  (I  call  the 
freighter,  the  merchant ;  and  the  other,  the  mafler,  for  the  clearer  diftinftionl : 
— now,  here  is  a  capture  without  any  fault  of  the  mafler ;  and  then  a  re- 
capture :  the  merchant  does  not  abandon,  but  takes  the  goods  ;  and  does  not 
require  the  mafler  to  carry  them  to  Lifbon,  the  port  of  delivery:  indeed,  the 
mafler  could  not  carry  them  in  the  fame  fliip,  for  it  was  difabled,  and  was 
itfelf  abandoned  to  the  infurers  of  it ;  and  he  would  not  defire  to  find  another, 
becaufe  the  freight  was  higher  from  Biddcford  to  Lifbon,  than  from  New- 
foundland to  Lifbon :  — there  can  be  no  doubt  but  that  fome  freight  is  due  ;  for 
the  goods  were  not  abandoned  by  the  freighter,  but  received  by  him  of  the  re- 
captor  :  the  queflion  will  be  "  -what  Jreight  f" — the  anfwer  is,  "  a  ratable 
freight :"  i.  e.  pro  rata  itincris. — If  the  maftcr  has  his  election  to  provide 
another  fhip,  to  carry  the  goods  to  a  port  of  delivery,  and  the  merchant 
docs  not  even  defire  him  to  do  fo,  the  mafler  is  flill  entitled  to  a  proportion, 
pro  rata,  of  the  former  part  of  the  voyage.  I  take  the  proportion  of  the 
falvagehcre  to  be  half  ihc  whole  cargo,  upon  the  flate  of  the  cafe  as  here 
agreed  upon : — and  it  is  reafonable  that  the  half  here  paid  to  the  recaptor 
fhould  be  ccnfidered  as  loll ;  for  the  recaptor  was  not  obliged  to  agree  to  a 
valuation,  but  he  might  have  had  the  goods  a6lually  fold,  if  he  had  fo 
pleafed,  and  taken  half  the  produce  ;    and  therefore  the  half  of  them  are  as 

much 


*>,: 


FREIGHT    AND    FREIGHTER. 


249 


much  loft,  as  if  they  remained  in  the  enemy's  hands :    fo  that  half  the  goods 

muft  be  confidered  as  loft,  and  half  as  faved. Here,  the  mafter  had  come 

feventeen  days  of  his  voyage,  and  was  within  four  days  of  the  deftined  port, 

when  the  accident  happened ;    therefore  he    ouglit  to  be  paid  his  freight  for 

feventeen  twenty -one  parts  of  the  full  voyage,  for  that  half  of  the  cargo  which 

was  faved. 1  find  by  the  ancienteft  laws  in   the  world   (the  Rhodian  laws) 

that  the  mafter  fhail  have  a  ratable  proportion,  where  he  is  in  no  fault : 
and  Confolato  del  Marc,  a  Spanifti  book,  is  alfo  agreeable  thereto  :    ever  fince 
the  laws  of  Oleron,  it  has  been  fettled  thus.     In  the  Ufages  and  Cuftoms  of  the 
Sea  (a  French  book)  with  obfervations  thereon,  the  fourth  article  of  the  laws 
of  Oleron  is,  "  that  if  a  velfel  be  rendered  unfit  to  proceed  in  her  voyage, 
and  the  mariners  fave  as  much   of  the  lading  as  poftibly  they  can ;    if  the 
merchants  require  their  goods  of  the  mafter,  he  may  deliver  them,    if  he 
pleafes,  they  pa)'ing  the  freiglit  in  proportion  to  the  part  of  the  voyage  that 
is  performed,  and  the  cofts  of  the  falvage :    but  if  the   mafter  can  readily 
repair  his  fliip,  he  may  do  it ;    or,  if  he  pleafes,  he  may  freight  another  fliip 
to  perform  his  voyage."     Amongft  the  obfervations  thereon,  the  firft  is,  "  tliat 
this  law  does  not  relate  to  a  total  and  entire  lofs^   but  only  to  falvage  ;  or 
rather,    not  to  the  fliipwreck,  but  to  difabling  of  a  fliip,   fo  that  ihe  cannot 
proceed  in  her  voyage  without  refitting;   in  which  cafe,  the  merchants  may 
have  their  goods  again,  paying  the  freight,   in  proportion  to  the  way  the  ftiip 
made."     The  obfervation   adds  further,  "  that  if  the  mafter  can,    in  a  little 
time,  refit  his  veflel  and  render  her  fit  to  continue  her  voyage   (that  is,  if  he 
can  do  it  in  three  days  time  at  the  moft,  accordmg  to  the  Htnfe-Towns  laws) ; 
or  if  he  -will  himfelf  take   freight  for  the  merchandife  aboard  another  ftiip 
bound  for  the  fame  port  to  which  he  was  bound,  he  may  do  it :    and,  if  the 
accident  did  not  happen  him  by  any  fault  of  his,  then  the  freight  ftiall  be  paid 
him  :"   the  thirty-feventh  article  of  the  laws  of  Wifbuy  is  to  the  very  fame 
purport : — Roccus  de  NavibusetNaulo,  in  note  81ft  fays,  "Declarahocdiftum: 
ubi  nauta  munere  vehendi  in   parte  fit  fundus,   quia  tunc  pro  parte  itineris 
quo  merces   inventse  fint,   refturam  deberi   a^quitas   fuadet ;    et  pro  ea  rata 
mercedis  folutio    fieri  debet.     Ita   Paul   de   Caftro,    cS:c."    (then  a  ftring  of 
authorities  follows) :    "  et  probat  Johannes  de  Evia,   Sec.    qui  hoc  extendit  in 
cafu  quo  merces  fuerint  deperditse    (totally  loft)   una  cum  navi,  et  certa  pars 
ipfarum  mercium  poftea  fuerit  falvata  et  recuperata,   tunc  naulum  deberi  pro 
rata  mercium  recuperatarum,  et  pro  rata  itineris  ufquc  ad  locum  in  quo  cafus 
adverfus  acciderat  fundat,  &c."  (and  then   he   goes  on  with  authorities) : 
"  item   declara,    quod  fi    dominus   feu   magifter  navis   folverit  mercator  ad 
folutionem  nauli,  quia  merces  habentur  ac  fi  falvatse  fuilfent." — In  another 
book,  entitled  the  c>?"(im(inc^  of  Lewis  the  xivth,  eftabliflied  in  1681   (colle6led 
and  compiled   under  the  authority  of  M.  Colbert)    the  fame  rules  are  laid 
down;    particularly  in  the  18th,   19th,   21ft,  and  22d  articles  :   art.  18  direfts, 
that   "no  freight  Ihall  be  due,    for  goods  loft  by  ftiipwreck,    or  taken  by 
pirates  or  enemies :"   art.  19  is,  that  "  if  the   ftiip  and  goods  be  ranfomcd. 
the  mafter  fliall  be  paid  his  freight  to  the  place  where  they  were  taken ;   and 
he  ftiall  be  paid  his  whole  freight,  if  he  conduft  them  to  the  place  agreed  on  ; 

3Q  he 


250  FREIGHT    AND    FREIGHTER. 

he  contributing  towards  the  ranfom  :"  art.  20  fettles  the  rate  of  contribution  : 
art.  21,  "the  mailer  fliall  likewifc  be  paid  the  freight  of  goods  faved  from 
fhipwreck ;  he  conducing  them  to  the  place  appointed  :"  art.  22,  "  if  he 
cannot  find  a  fhip  to  carry  thither  the  goods  preferved,  he  fhall  only  be  paid 
his  freight  in  proportion  to  what  he  has  performed  of  the  voyage  :" — and  the 
cafe  in  the  houfe  of  lords  between  Lutwidge  &  Hozo  v.  Grey  &  al.  is  alfo  in 
point ;  and  was  well  confidered  there  ;  and  Lord  Talbot  gave  the  reafons  of 
the  judgment  of  the  houfe,  at  length. — Therefore,  in  the  prefent  cafe,  a 
ratable  proportion  of  freight  ought  to  be  paid  for  half  the  goods: — it  is 
quite  immaterial,  what  the  merchant  made  of  the  goods  afterwards ;  for  the 
mafter  hath  nothing  at  all  to  do  with  the  goodnefs  or  badnefs  of  the  market ; 
nor  indeed  can  that  be  properly  known,  till  after  the  freight  is  paid ;  for  the 
mailer  is  not  bound  to  deliver  the  goods,  till  after  he  is  paid  his  freight :  no 
fort  of  notice  was  taken  of  the  matter,  in  the  cafe  of  Lutwidge  &  How  v. 
Grey,  in  the  houfe  of  lords;  and  yet  there  the  tobacco  was  damaged  very 
greatly,  even  fo  much,  that  a  great  part  of  it  was  burnt  at  the  fcales  at 
Glafgow. — Therefore  the  verdicl  muft  be  for  60I.  14s.  which,  upon  compu- 
tation, amounts  to  the  ratable  proportion  of  the  freight ;  feventeen  twenty- 
one  parts  of  75I.  the  half  of  150I. :  confequently,  the  verdift  which  was  for 
70I.  mufl  be  fet  right,  and  made  60I.  14s. — 2  Burr.  883.  Mich.  33  Geo.  2. 
— Luke  &  al.  V.  Lyde. 

8.  If  the  freighter  prove  that  when  the  veflel  failed  fhe  was  not  fit  for  the 
fea,  the  mailer  Ihall  lofe  his  freight,  and  be  anfwerable  to  the  merchant  for 
colls  and  damages.  The  mailer  Iliall  be  paid  freight  for  thofe  goods  which 
may  be  thrown  overboard  for  common  fafety ;    he  however  contributing  his 

proportion. The  freight  fhall  alfo  be  due  for  the  goods  that  the  mafter 

fhall  have  been  obliged  to  fell,  for  viftualling,  refitting,  and  other  abfolute 
and  prelRng  necelTaries  ;  he  accounting  for  them  at  the  rate  that  the  remainder 

fliall  have  been  fold  at  the  place  of  unloading. The  owners  of  fhips  and 

the  mafters  Iliall  not  have  infurance  made  on  the  freight  their  velTels  may 
make  ;    nor  fhall  the  merchants  on  an  expefted  profit  on  their  goods,  nor 

fea-faring  men  on  their  hire. If  the  mafter  be  obliged  to  refit,  or  heave 

down  his  veflel  during  the  voyage,  thofe  who  have  loaden  on  her  fhall  be 
obliged  to  wait  this  refitting,  or  fliall  pay  the  wlwle  freight  for  their  goods : 
in  cafe  the  fhip  cannot  be  refitted,  the  mafter  fliall  be  obliged  immediately  to 
hire  another  ;    and  not  finding  one,  his  freight  fhall  only  be  paid  him  in 

proportion  as  he  fhall  have  been  advanced  in  the  voyage. The  freighter 

may,  whilft  an  embargo  fubfifts,  at  his  own  expence  unload  his  goods,  on 

condition  that  he  re-fliip  them,  or-'  indemnify  the  mafter. Merchants  fhall 

not  oblige  the  mafter  to  take  for  his  freight  goods  decreafed  in  value,  fpoilt, 
or  become  worfe  from  their  own  nature,  or  by  accidents. — Ordin.  of  France. 

(N.  B.     Valin,  in  his  commentary  on  this  article,  vol.  2,  p.  671,  is  of 

opinion  thot,  in  fuch  cafes,  the  freight  ought  not  to  extend  beyond  the  value 
of  the  goods ;  and  that  in  no  cafe  the  freighter  ought  to  demand  a  diminution 
of  the  value  of  the  freight ;   but  that  he  fhould  be  at  liberty,  in  every  cafe, 

to 


R       U       I       T. 


251 


to  abandon  the  goods  for  the  freight ; — and  he  fays,  p.  672,  that  there  feems 

to  be  a  contradittion  between  the  preceding  and  the  following  article) : 

If  however  goods  in  cafks,  as  wine,  oil,  honey,  and  other  liquors,  have  leaked 
fo  much  as  that  the  caflcs  are  empty,  or  almoll  empty,  the  freighters  may 
abandon  them  for  die  freight. — Ordin.  of  France. 

g.  The  freight  money  which  comes  into  contribution  fhall  be  fully  rated, 
both  from  the  goods  loft  and  pledged,  the  whole  pay  of  the  mafter  and  the 
{hip's  company  being  firfl:  dedufted. — Ordin.  of  Koningjb. 

10.  Remark. — The  London- Affu ranee  company  ufually  refufes  to  make 
infurance  on  freight ;  unlefs  it  is  fpecified  to  be  on  net  freight. 

11.  Sez  Abandonment,  Average,  Barratry,  Bottomry,  Bounty,  Commence^ 
merit  of  Voyage  or  Rifque,  Contribution,  Corn,  Foreign  Court,  Fraud,  General 
Average,  Infufficiency,  Interejt,  Majler,  Petty  Average,  Provifons,  Ranfom, 
Repair,  Rejlraint,  Rifque,  Salvage,  Valuation^  Wager,  Wages. 


FRIENDLY   SOCIETY     FIRE-OFFICE. 

1.  nn HIS  was  the 7?r/Z  fire-office  eftablifhed  in  London;  and  was  erefled 
-^  in  1684,  for  infuring  houfes  ;  which  is  done  on  brick  buildings  at  the 
rate  of  gs.  4d.  per  cent,  for  feven  years,  and  double  that  fum  on  thofe  of 
wood :  but  befides  this  certain  charge  the  infured  are  obliged  to  contribute 
to  the  payment  of  all  loffes  that  may  happen  ;  in  order  to  which  they  make  a 
depofit  of  6s.  8d.  percent,  and  fo  much  thereof  as  remains  undivided  at  the 
expiration  of  the  feveral  infurances,  is  returned  to  the  refpeftive  proprietors. 
■—For  fecuring  the  payment  of  all  loffes  by  fire,  a  confiderable  fecurity  in 
land  is  fettled  by  truftees  ;  and  for  extinguilhing  fires  the  fociety  continually 
keep  in  their  fervice  twenty-two  firemen,  who  wear  the  company's  badge,  and 
are  annually  clothed. 

2.     See  Company,  Fire,  Society. 

FRUIT. 

See  Average,  Commodity,  Corn,  Free  of  Average,  Goods,  Peafe,  Stranded. 

GAMING- 


G. 


GAMING-INSURANCE. 


See  Prelim.  Difc.  q^.  Bargain,  Commodity,  Fraud,  Interejl  or  no  Intereft,  Wager. 


GENERAL  OR  GROSS  AVERAGE. 

1.  "TT  THAT  EVER  the  mailer  of  a  fhip  in  dijlrefs,  with  the  advice  of 
'  '  his  officers  and  failors,  deliberately  refolves  to  do,  for  the  prefer- 
vation  of  the  whole,  in  cutting  away  mafts  or  cables,  or  in  throwing  goods 
overboard  to  lighten  his  vefiel,  which  is  what  is  meant  by  jettifon  or  jetfon, 
is,  in  all  places,  permitted  to  be  brought  into  a  general,  or  grofs  average  ;  in 
which  all  concerned  in  fliip,  freight,  and  cargo,  are  to  bear  an  equal  or 
proportionable  part  of  what  was  fo  facrificed  for  the  common  good,  and  it 
mufl:  be  made  good  by  the  infurers  in  fuch  proportions  as  they  have  under- 
wrote : — however,  to  make  this  aftion  legal,  the  three  following  points  are 
effentially  neceffary  ;  viz. — ifl.  That  what  was  fo  condemned  to  deftruclion, 
was  in  confequence  of  a  deliberate  and  voluntary  confultation,  held  between 
the  mailer  and  men  : — 2dly.  That  the  Ihip  was  in  dillrefs,  and  the  facrificing 
the  things  they  did  was  a  neceffary  procedure  to  fave  the  reft : — and  3dly. 
That  the  faving  of  the  Ihip  and  cargo  was  aflually  owing  to  the  means  ufed 
with  that  fole  view. 


2.  All  extraordinary  charges,  proceeding  from  endeavours  to  preferve 
the  Iliip  and  cargo,  and  the  damages  refulting  from  the  meafures  taken  for 
that  purpofe,   conllitute,  and  are  commonly  accounted  a  general  or  grofs 

average. 1  Ihall  here  colleft  in  one  point  of  view,  as  far  as  I  am  able, 

all   the   particulars   which  fall  under  the  denomination  of  general  average : 
— viz. 


1.  All  damage  that  a  fhip  fuflTers  in  her 
apparel  and  cargo,  in  defending  her  againft 
an  enemy,  privateer,  or  pirate. 

2.  Extraordinary  pilotage,  and  charges 
which  a  (hip  fliail  be  at,  on  fpringinga  leak, 
or  being  obliged  to  take  fhelter  in  a  har- 
bour, by  having  received  fome  other  damage. 


3.  The  neceffary  expences  for  affiftance 
to  get  clear,  when  a  fhip  is  rim  aground, 
or  the  charges  of  lightening  her  on  fuch 
occafions. 

4.  Whatever  a  mailer  may  have  agreed 
to  pay  for  the  ranfom  of  his  fhip,  and  cargo, 
to  any  privateer,  or  pirate,  when  taken. 

5.     What 


GENERAL  OR  GROSS  AVERAGE. 


253 


5.  What  may  be  expended  in  the  cure, 
and  extraordinary  attendance  on  either 
officers  or  failors,  wounded  in  defence  of 
the  fhip;  and  alfo  rewards  promifed  by 
articles  to  the  widows  and  children  of 
thofe  who  may  unfortunately  lofe  their  lives 
in  the  engagement. — Ord.  of  Hamb. 

6.  The  extraordinary  gratuity  which  a 
mafter  may  have  promifed  his  men,  to 
animate  them  to  a  ftout  defence,  or  falvage 
of  the  veflel. — Ibid. 

7.  All  mafts,  anchors,  cables,  and  rig- 
ging, either  flipt,  or  cut  away  ;  and  all  fails, 
or  other  appurtenances,  torn,  or  fpoilt;in 
order  to  fave  the  fhip  and  cargo. 

8.  All  that  is  thrown  overboard,  or 
damaged  by  a  jettifon  for  the  fliip's  fafety. 

g.  The  value  of  any  goods  or  (lores 
taken  away,  or  plundered  by  privateers,  or 
other  commiffioned  fliips,  with  a  promife  to 
pay  for  them. — Ord.  of  Ilamb. 

10.  Charges  occafioned  by  any  extra- 
ordinary quarantine,  and  other  unavoidable 
accidents. — Ibid. 

n.  Whatever  holes  are  cut  in  a  fliip, 
in  order  to  have  the  water  run  out,  or  con- 
veyed to  the  pumps,  when  by  fhipping  a 
fea  fhe  is  filled. 

12.  The  fhip's  boat,  if  cut  away  from 
it's  faltenings,  and  fet  adrift. 

13.  Theexpence  of  getting  a  fhip  afloat, 
after  running  afhore,  and  that  of  repairing  the 
damaged  works  under  water. — Ord.  of  Ccp. 

14.  Goods  loft  by  being  put  into  any 
other  veffel,  or  lighter,  and  there  periflied, 
when  otherwife  they  muft  have  been  thrown 
overboard. 

15.  The  charges  which  a  mafter  pays 
for  bringing  his  fliip  to  a  place  of  fafety, 
on  being  chafed  by  an  enemy ;  or  if  fhe 
lay  in  a  dangerous  port,  waiting  for  a  fair 
wind,   or  convoy. 

16.  The  charges  of  lawyers,  attorneys, 
and  proQors;  for  reclaiming  ftiip  and  cargo. 

17.  Travelling  expences  ofperfons  con- 
cerned in  the  folicitation  of  it, 

18.  Gratuities  given  on  fuch  occafions. 
ig.     Protefts. 


20.  Tavern  expences  at  meetings  about 
it. 

2t.     Poftage  for  correfpondencics. 

22.  Commiffions  to  merchants  or  fa£lors 
who  have  the  direflion  and  care  of  it. 

23- 


Brokerage. 


24.  Charges  for  the  hire  of  anchors, 
cables,  &c. 

25.  Lighterage  for  the  unloading,  and 
demorage. 

26.  Horffe,  cart,  and  waggon  hire,  when 
goods  are  carried  over  land. 

27.  Gratuities  to  lords  of  manors,  and 
proprietors  of  lands,  for  leave  to  dig  a  fhip 
off,  that  is  drove  afhore  above  high  water 
mark,  either  by  a  ftorm  or  tide,  as  happened 
in  1703,  near  Gluckftat;  and  the  charges 
in  performing  it. — Langenbtck. 

28.  Coft  of  repairs,  to  carpenters,  block- 
makers,  fail-makers,  fmiths,  &c. — Ibid. 

29.  Charges  of  laying  in  frefh  ballafl. 
—Ibid. 

30.  Rewards  promifed  to  the  failors 
more  than  their  wages,  for  extraordinary 
labour  for  the  fliip's  prefervation. — Ibid. 

31.  Intereft,  premium  ofinfurance,  and 
commiflion  on  monies  difburfed. — Ibid. 

32.  Charges  of  viftualling,  and  guard- 
ing the  fliip,  during  her  detention. — Ibid. 

33.  Cofl  of  infpefling  cultom-houfe  re- 
gifters,  to  find  out  who  may  be  concerned, 
or  proprietors. — Ibid. 

34.  Charges  (in  Roman  Catholic  coun- 
tries) of  carrying  the  Holy  Virgin  home, 
offering  thanks,  and  what  is  given  to  the 
poor. — Mcigcns. 

35.  Charges  of  fending  advice-boats 
from  diftant  places. — Ibid. 

36.  For  furgeons,  and  phyficians'  kcs, 
for  attending  thofe  that  became  fick,  or  were 
wounded  in  their  endeavours  for  the  prefer- 
vation of  the  fhip  and  cargo. — Ibid. 

37.  For  appraifers,  and  for  the  attend- 
ance of  notaries  and  magiftrates. — Ibid. 

38.  For  entrance  into  Dover  pier; 
detention  there  for  feveral  tides;  king's 
furveyors ;  cuflom-houfe  officers;  light 
money,  &c. — Ibid. 


In  fhort,  whatever  charges  may  occur  for  thie  joint  interefl  of  the   concerned 
in  fliip  and  cargo,  which  can  hardly  be  all  enumerated  ;    and  of  thofe  already 

3  R  mentioned 


251    GENERAL  OR  GROSS  AVERAGE. 

mentioned,  fome  are  not  common  to  all  cafes,  nor  in  all  places : — it  would 
therefore  require  a  very  nice  examiijation  and  fcrutiny,  to  admit  them  abfo- 
lutely.,  as  laid  down,  in  general  averages. 

3.  In  certain  cafes,  where  it  was  proved  that  fliips  endeavouring  to  keep 
clear  of  a  lce[hore,  had  nezo  fails  blown  away,  and  cables  parted  by  anchoring 
in  open  fea,  to  avoid  driving  afhore,  :the  lolfes  being  occafioned  by  driving 
to  pref_'rve  the  whole,  Avere  made  good  by  the  infurers,  whofe  intereft  it 
always  is  (as  well  as  for  the  common  advantage)  to  make  it  die  mailer's 
intereft  to  fpare  nothing,  in  fuch  extraordinary  cafes,  to  fave  the  fliip  from 
ftranding,  by  carrying  out  frefh  cables  when  others  have  parted.  If  a  mafter 
beinghimfelf  a  part  owner  in  the  (liip,  and  fully  infured,  knows  that  he  fhall 
not  be  paid  for  the  firft  cables  he  may  carry  out,  and  lofe  by  their  breaking, 
he  is  difcouraged  from  rifquing  others,  though  with  the  appearance  of  faving 
his  fliip,  as  he  may  think  it  more  for ;  his  advantage  to  let  her  go  afhore  oti 
the  firft  cable's  parting,  becaufe  the  infurers  muft  then  pay  him  the  full 
infurance  ;  whereas  if  ftie  were  faved  by  veering  out  other  cables,  he  would 
lofe  the  value  of  thofe  anchors  or  cables  that  were  loft,  or  broke  before  : — 
it  may  be  added,  that  as  it  is  for  the  common  good,  and  for  the  particular 
intereft  of  all  infurers,  that  fiiips  ftaould  not  go  to  fea  without  good  cables, 
fails,  &c.  thofe  cables  that  are  not  fufficiently  ftrong  for  a  fiiip  to  ride  with 
in  the  ufual  loading  places,  or  ^my  fails  blown  to  pieces  by  ftormy  weather 
in  the  common  courfe  of  a  voyage,  fliould  not  be  paid  for  by  the  infurers  ; 
as  it  might  be  an  incitement  for  mafters  not  to  go  without  good  ones. 

4.  If  the  ftiip,  after  having  made  jettifon,  or  cut  away  her  cables,   mafts, 

&c.  at  one  place,  is  Jlranded  at  another,  each  concerned  muft  bear  his  own 

lofs,  or  remain  poflefFed  of  what  is  faved  of  his  property: — for  inftance ;    a 

mafter  bound  for  Cadiz,  is  obliged  by  a  ftorm  in  the  Downs  to  cut  away  two 

cables,  and  get  to  fea ;   by  which  means  he  cleared  the  ftiip  from  the  great 

danger  he    was  there   expofed  to  ;    but  he  afterwards  had  the  misfortune  to 

run  his  fliip  aftiore  near  Plymouth,  where  the  major  part  of  his   cargo  was 

faved  : — in  this  cafe,  the  owners  of  the  ftiip  have  no  right  to  demand  that  the 

proprietors  of  the  goods  faved  ftiall  contribute  towards  the  cables  and  anchors 

left  in  the  Downs,  notwithftanding  the  imminent  danger  of  lofmg  the  ftiip  on 

the  Goodwin-Sands  (where  there  was  no  probability  that  any  thing  could  be 

faved)  which  could  only  be  guarded  againft  by  the  method  taken  of  cutting 

away  the  two  cables : — from  hence  it    follows,   that   if  nothing  had   been 

faved  of  the  cargo,  and  the  cables  and  anchors  had  afterwards  been  recovered, 

they  would  remain  the  fole  property  of  the  owners  of  the  fliip,  atleaft  till  the 

proprietors  of  the  goods  had  aftually  paid    for,  or  contributed  towards  the 

lofs  of  thofe  cables  and  anchors. — This  is  an  old  law,  and  the  cuftom  of 

many  places :  '•'   if  a  deep-loaden  ftiip  be   obliged  to   take  out  part  of  her 

cargo,  previous  to  her   pafting  fome    flioals  or   flats,   which   without   fuch 

lightening  hinder  her  getting  to  her  deftined  port,  and  the  lighters,  or  boats 

in  which  the  goods  of  fuch  cargo  are  put,  fliould  perifli,  the  owneis  of  the 

goods 


1 


GENERAL  OR  GROSS  AVERAGE.    orr 

goods  that  remain  are  to  bear  an  equal  proportion  of  the  lofs ;  bat  if  xhcJJiip 
fliould  be  loft,  and  the  lighters  faved,  the  owners  of  the  goods  fo  preferved 
{hall  not  only  remain  poffefTed  of  thofe  goods,  but  alfo  fliall  contribute 
nothing  towards  the  lofs  of  the  fliip  and  what  was  in  her."  The  difference 
is  founded  on  this:  that  lightening  of  the  fliip  was  in  confequence  of  a 
deliberate  and  voluntary  determination,  and  for  the  good  of  the  whole ; 
whereas  the  lighters  being  faved,  and  the  fliip  loft;  was  owing  to  an 
accident,  no  ways  proceeding  from  a  regard  to  the  zvhole,  but  a  cafe 
fimilar  to  the  faving  goods  lying  neareft  at  hand  v.hen  a  fiiip  is  run  afiiore. 

5.  Let  us  go  ftill  further,  and  fuppofe,  that  a  fliip  running  on  a  bank 
throws  over-board  all  her  heavy  ftores,  and  part  of  her  cargo,  by  which 
jettifon  ftie  gets  clear,  and  returns  ■  to  fea  ;  yet  proves  fo  leaky,  that  (he  is 
obliged  to  make  for,  and  take  flicker  in,  the  next  harbour,  where,  upon 
examination,  flie  is  found  in  fo  bad  a  condition,  as  not  to  be  repaired,  and 
therefore  is  condemned  as  unfit  to  proceed  on  the  voyage : — in  this  cafe, 
notwithftanding  her  lofs  proceeds  from  her  having  been  afl:iore,  yet  as  fhe 
got  clear  by  the  aforefaid  jettifon,  and  the  remainder  of  the  cargo  efcaped, 
and  arrived  fafe  in  harbour  ;  that  which  was  fo  faved,  muft  contribute  to  the 
lofs  of  what  was  thrown  over-board :  but  yet  whatever  damage  the  ftiip 
fuftained  by  her  running  aground,  or  the  damage  or  lofs  any  particular  goods 
fuffered  by  this  unhappy  accident,  muft  be  borne  by  the  ftiip's  owners,  and 
by  the  owners  of  the  goods,  without  any  pretenfion  of  indemnification  from 
the  cargo  faved  ;  their  redrefs  being  only  againft  the  infurers. 

6.  The  fea  laws  of  trading  countries  differ  greatly  in  fixing  the  prices,  at 
which  goods  thrown  overboard  fliall  be  made  good,  and  for  what  value  thofe 
faved  are  to  contribute : — now  this  difference  naturally  gives  rife  to  the 
following  queftion,  viz.  "  Which  is  the  jufteft  way,  to  reckon  the  goods 
according  to  their  value  at  the  place  they  come  from,  or  according  to  their 
value  at  the  place  where  they  are  landed  ?" — In  anfwer,  there  feems  to  be  no 
manner  of  doubt,  but  that  if  the  (hip  arrived  in  fafety  at  her  deftined  port, 
both  the  goods  thrown  over-board,  and  thofe  delivered,  ought  to  be  valued 
at  the  price  they  might  have  yielded,  or  did  yield  there,  whether  the  jettifon 
was  made  before  they  came  half  the  way,  or  after:  for  if  the  goods  faved 
by  this  jettifon  arrived  at  the  place  they  were  deftined  for,  and  there  pro- 
duced double  what  they  coft,  it  would  be  unreafonable  that  one  half  of  fuch 
produce  fliould  contribute  nothing  to  what  was  caft  away  :  nor  would  it,  on 
the  contrary,  be  reafonable  to  make  the  goods  faved  (if'they  came  to  a  lofing 
market)  pay  for  more  than  they  produced : — or,  fuppofe  they  were  fuch  as 
had  fuffered  by  their  own  perijliable  nature  ;   what  reafon  could  there  be  to 

make   them  contribute  ad  valorem  of  their  cojl  ? It  appears  by  Malyncs* 

Lex  Merc.  c.   26,  that  this  diftinftion  was  likewife  obferved  in  England  in 
1622,  the  time  in  which  he  wrote  of  "  rating  the  goods  at  prime  coft,  if  the 

jettifon  happened  before  half  the  voyage  was  performed;  and  if  after,  at  the 
price  that   the  reft,  or  like  goods  fold  for,  at  the  place  of  difcharge  :" — but, 

as 


25^,    GENERAL  OR  GROSS  AVERAGE. 

as  there  is  no  law  In  England  that  poHtively  direcls  what  method  is  to  be 
obferved  in  thefe  cafes,  the  infurers,  as  well  as  the  infured,  are  bound  by  the 

determination  of  referees. MoUoy,  in  his  treatife  de  jure  maritimo,  b.  2. 

c.  6.  remarks  that,  in  his  time,  the  general  citjlom  was,  "  that  the  goods 
faved,  and  thofc  lofl,  Ihould  be  eftimated  at  the  price  which  thofe  faved  were 
fold  for,  freight  and  other  necefTary  charges  deducled  :"  and  this  feems  to  be 
the  prevailing  cuftom  noiv  in  England. 

7.  Accidents  may  happen  that  may  caufe  a  contribution  before  the 
fhip  can  reach  her  deflined  port. — When  a  veffel  has  been  obliged  to  make 
a  jettifon,  or,  by  the  damages  fuffered  foon  after  failing,  is  obliged  to  return 
from  whence  flie  came ;  the  necefTary  charges  of  her  repairs,  and  the 
replacing  the  goods  thrown  over-board,  muft  be  proportioned  by  a  general 
average  : — in  like  manner,  when  (hips  are,  in  time  of  war,  detained,  in  foreign 
parts,  and  expofed  to  great  expences  in  procuring  their  releafe  ;  there  is  no 
other  way  of  fettling  a  contribution  for  the  payment  of  thofe  charges,  but 
on  the  firfl  cofl  of  the  cargo.— With  regard  to  fome  forts  of  goods  that 
arrive  whither  they  were  bound  after  a  jettifon,  it  may  be  lefs  inconvenient 
for  all  the  concerned  to  fettle,  and  make  a  repartition  of  the  lofs  upon  the 
cojl  of  the  whole  cargo,  than  to  calculate  upon  a  forced  fale,  or  an  inaccurate 
appraifement. — However,  none  of  thefe  rules  are  to  be  underflood  to  be 
without  exception,  or  to  want  no  amendment ;  for  though  a  law  may  ordain 
that  each  owner  fliall  contribute  proportionably  to  the  cojl  of  his  goods ;  yet 
if  he  can  prove  that  they  ^'cr&  Jpoiled,  or  h^idi  fallen  confiderably  in  value 
after  fnipping,  it  doth  not  feem  equitable  to  compel  him  to  any  other 
contribution  than  pro  rata  of  what  his  goods  are  zoorth  at  the  time  of 
fettling  the  average. 

8.  In  a  code  of  commercial  laws  enafted  at  Bilboa,  anno  1738,  c.  21. 
treating  in  what  manner  grofs  averages  are  to  be  regulated,  it  is  faid,  "  That 
the  major  part  of  the  concerned  fhall  have  it  in  their  choice  to  regulate  the 
value  of  the  goods  by  the  price  appearing  in  the  invoices,  or  by  what  they 
fliall  be  computed  at  by  an  appraifement  made  conformable  to  their 
current  price  at  the  defigned  port,  regard  being  had  to  the  condition  they 
come  in,  and  their  quality  ;  but  that  a  repartition  of  no  part  of  the  average 
(hall  be  made  on  the  freight  without  the  unanimous  confent  of  all  the 
concerned  and  the  captain." 

g.  The  difference  of  the  ordinances  of  feveral  flates  in  the  manner  of 
fettling  the  flip's  contribution  is  eafily  reconciled  ;  for  it  proceeds  from  the 
fame  grounds,  viz.  the  impoffibility  of  employing  a  fhip  in  any  voyage, 
without  xoear  and,  tear,  and  confequently  lofing  of  that  value  fne  had  when 
(lie    commenced   it :    and  the  fuppofition  that  one  half,  or  one-third  of  her 

freight,   would  be  expended  in    paying  men's  wages,  and  other  charges. 

The  right  and  juft  way  of  calculating  is  that  the  net  freight,  and  full  worth 
of  the  flip   (after  making  proper   allowances  for  what  flie  is  diminiflied  in 

value 


GENERAL  OR  GROSS  AVERAGE. 


257 


value  by  the  ordinary  courfe  of  the  voyage,  and  the  extraordinary  accident 
that  gave  occafion  for  the  general  average)  fiiall  contribute  their  fliare  or 
part  in  a  general  average. 

10.  The  fixing  of  the  right  fum,  on  which  a  general  average  ought  to 
be  computed,  can  only  be  done  by  examining  what  the  whole  fliip,  freight, 
and  cargo,  if  no  jettifon  had  been  made,  would  have  produced  net,  if  they 
had  all  belonged  to  one  perfon,  and  beeii  fold  for  ready  money : — and  this 
is  the  fum,  whereon  the  repartition  ought  to  be  made  ;  all  the  particular 
goods  bearing  their  net  proportion,  neither  more,  or  lefs. 

11.  If  the  calculation  of  a  general  average  be  made  at  the  place,  where 
the  fhip  was  loaden,  and  to  which  port  flie  was  obliged  to  return  to  be 
unloaded  and  repaired  ;  the  contribution  of  the  goods  towards  the  common 
lofs  can,  in  this  inftance,  be  calculated  no  otherwife  than  according  to  their 
valueat  the  place  where  they  were  (hipped,  or  xhtjirjl  coft  and  charges  of  them, 

12.  Gold  and  filvcr  at  mofl  places  contribute  to  a  general  average 
according  to  their  full  value,  and  in  the  fame  manner  as  other  merchandife. — ■ 
In  Molloyj  de  jure  viaritimo,  it  is  afferted,  C.  6,  f.  4.  "  that  in  general  money, 
and  even  jcwc/j-,  clothes,  and  all  things  in  the  fliip  (except  a  man's  apparel 
in  ufe,  or  viftuals,  &c.  put  on  board  to  be  fpent)  are  liable  to  average  and 
contribution;" — and  f  14.  "  that  a  mailer,  or  purfer  fliall  contribute  for  the 
prefervation  thereof;  alfo  the  paffengers  for  fuch  things  as  they  have  in  the 
fliip,  be  they  precious  flones,  pearls,  or  the  like  ;  arid  pajjcngers  that  have 
no  goods  in  the  fhip,  yet  in  regard  they  are  a  burthen  to  her,  an  eflimate 
is  to  be  made  of  their  apparel,  rings,  and  jewels,  towards  a  contribution  for 
the  lofs  ;" — in  which  aflertion  he  feems  to  have  enlarged  upon  Alalynes, 
from  what  he  found  in  the  annotations  of  fome  foreign  authors  on  the 
Rhodian  laws,  which  he  fays  were  introduced  into  England  by  William  the 
Conqueror,  and  Henry  the  firft,  though  it  is  fuppofed  he  never  knew  them  to 
have  been  exaftly  followed  at  London  :  at  leafl  in  our  time  I  do  not 
remember  ever  to  have  met  with  any  regulation  of  a  general  average,  where 
the   apparel  and  jewels  of  paffengers  were  brought  into  the  contribution,  as 

it  is  a  common  rule,    that  "  zchat  pays  no  freight,  pays  no  average." It  is 

cufiomary  in  London,  and  moft  other  countries,  for  the  proprietors  of 
whatever  gold,  filver,  or  jewels,  pay  freight  in  merchant-fhips,  to  contribute 
to  a  jettifon  for  their  full  value  ;  for,  the  maflcrs  being  obliged,  by  all  fea 
laws,  to  throw  out,  in  cafe  of  need,  what  is  heavieft,  and  of  Icaft  value,  and 
the  worth  of  fuch  precious  commodities  being  known,  the  care  of  them  will 
be  increafed  in  proportion  to  their  worth,  to  prevent  their  being  thrown 
over-board  promifcuoufly  with  other  things :  and  hence  their  prefervation 
redounds  to  the  common  benefit. — There  is  a  difference  neverthelefs  M'hcn 
thefe  rich  wares  come  by  kings Jliips,  ov packet  boats,  as  fuch  veffels  never  pay 
nor  receive  any  average :  the  reafon  is,  in  goods  belonging  to  his  majefly, 
all  his   fubjefls  in  general  are  concerned,   wherefore   for  any  particular   lofs 

3  S  of 


258    GENERAL  OR  GROSS  AVERAGE. 


of  them  no  particular  contribution  is  neceflary,  becaufe  it  is  fupplied  by  the 
general  contribution  of  the  whole  community. 

13.  As  every  charter-party  made  with  the  Eajl-India  company,  l^as  the 
condition  inferted,  "  that  the  freighters  fhall  not  be  obliged  to  make  good 
any  damage  that  the  fliip  may  fuffer;"'  fo  it  is  reafonable  to  apprehend,  that 
whatever  filver  is  fent  out,  or  gold,  and  diamonds  brought  home,  on  account 
of  private  perfons,  fhall  alfo  be  free  from  any  fort  of  contribution  towards 
a  general  average. — 1  Mag.  61  and  ante. 

14.  In  order  to  afcertain  the  damage  which  (liall  have  happened  by 
reafon  or  in  confequence  of  jettifons,  flranding,  or  cutting  away,  for  the 
effeftual  prefervation  of  life,  fliip,  and  cargo,  all  the  goods,  v/hether  lofL  or 
faved,  fhall  be  valued  all  together,  according  to  the  prices  at  the  market  where 
the  goods  faved  fhall  be  difpofcd  of,  for  money,  or  money's  worth  (firil 
deducing  from  thence  the  freight  and  other  charges)  and  then  adding 
thereunto  the  true  value  of  the  fhip,  or  the  whole  freight  agreed  for  by  the 
mafter,  at  the  option  and  choice  of  the  merchant,  all  which  being  added 
together,  everyone  (hall  from  the  whole  fum  be  rated  in  proportion  to  the  goods 
which  he  has  loft,  or  were  faved :  which  eflimation  and  calculation  of  fuch 
averages  {hall  be  made  by  maflers  of  fliips  and  merchants  experienced  therein^ 

and  that  are  impartial. And  if  there  Ihould  be  any  XQixAy-coincd  fpccics 

amongfl  the  above-mentioned  goods,  the  fame  fliall  be  eftimated  at  their  real 
■worth  and  intrinfic  value  :  always  underftanding  that  nothing  fliall  be  brought 
into  an  average  or  contribution,  that  any  perfon  has  about  him,  or  ufually  wears 
upon  his  body,  except  toys,  jewels,  flones,  gold,  and  filver. — Ordin.  0/ Antzv. 

15.  When  a  (hip  by  florm  has  taken  in  a  great  deal  of  water,  that  holes  muft 
be  made  in  the  fliip,  to  open  a  current  for  it  towards  the  pump,  and  fome 
goods  are  thereby  fpoiled  or  damaged,  the  damage  which  the  goods  or  the 

Ihip  may  fuffer  fl:iall  come  into  a  general  average. The  cutting  away  of  a 

boat  fliall,  for  the  reafon  jufl:  mentioned,  come  into  a  general  average, 
provided  there  was  room  enough  to  have  faved  it  conveniently ;  but  if  tlie 
fliip  was  loaded  fo  full,  that  the  boat  could  not  conveniently  have  been 
faved,   then  the  cutting  away  of  the  fame,  or  tlirowing  the  goods  that  were 

fl.owed  in  it  over-board,  fliall  not  come  into  the  average. Neither  fliall  the 

flinging  over-board,  or  emptying  of  any  goods  ilowed  on  the  upper  deck,  come 

into  the  average. In  cafe  the  goods  put  on  board  of  a  lighter,  either  by 

reafon  of  tempefl:,  or  otherwife,  in  order  to  make  the  fliip  float  again,  fliould 
happen  to  be  lofl: ;  the  damage  on  the  goods  fliall  be  brought  into  a  general 

average. But  if  the  lighter  happens  to  be  loft  or  damaged,   the  large  fliip, 

nor  the  goods  on  board  of  her,  fliall  not  be  liable  for  it ;  but  the  lofs  and 
damage  fliatl  fall  entirely  upon  the  owners,  unlcfs  the  large  fhip  was  afhore 
in  a  dangerous  fltuation,   and  that  the  lighter  happened  to  be  lofl  thereabout. 

The  mafter,  in  cafe  he  has  put  any  goods  on  board  of  a  lighter,  fhall  be 

obliged  to  pay  the  freight  of  the  lighter. Provided  the  danger,  in  which- 

thcv 


GENERAL  OR  GROSS  AVERAGE.    V5g 

-they  were   at  tliat  time,   was    not    overcome  ;    but  the  Jliip  peri/hrd  in  the 

lame. But  if  the  fliip  be  cafl  away  afterwards  by  another  accident,  the 

goods  that  are  faved  mull  contribute  to  the  lofs  of  the  goods  which  were  flung 
into  the  fea,  were  given  to  an  enemy,  were  loft  or  damaged  m  a  lighter,  on 
board  whereof  they  had  been  put,   or  by  any  other  means  made  ufe  of,   for 

the  prefervation  of  fhip  and  cargo ;  but  further  they  fliall  not  be  bound. 

V/ith  refpeti  to  money,  gold,  filver,  jezvcls,  and  other  m.erchandife  or  goods 
of  great  value,  and  little  bulk,  this  difference  fhall  be  obferved  -whether  the 
fame  was  delivered  to  the  captain  under  it's  proper  denomination,  or  had  been 
concealed  among  other  goods :  in  the  firft  cafe  the  average  is  to  be  charged 
upon  it,  but  not  if  the  fame  was  concealed  among  other  goods,  unlefs  the 
captain  was  advertifed  thereof  in  time,  before  any  thing  was  flung  overboard. 

In  order  to  make  up  the  general  average,   the  goods  that  are  lofl:,  as  well 

as  thofe  that  are  faved,  muft  be  valued  together,  and  the  freight  and  other 
charges  to  be  from  thence  dedu6ied,  then  to  add  thereunto  in  the  general 
average  the  value  of  the  fhip,  or  the  ^vhole  freight,  which  of  the  two  fliall 
cimount  to  the  moft ;  the  freight  in  this  refpeft  to  be  calculated  as  well  upon 
the  goods  that  were  faved,  as  upon  thofe  that  were  flung  overboard,  or  other- 
ways  loft. And  befides,  the  goods  flung  overboard,  loft,  or  damaged,  fliall 

bear  their  fliare  thereof,  along  with  the  other  goods,  as  they  reap  the  benefit 

of  fuch  contribution. With  refpeft  to   the   valuation   of   the  goods,    a 

diftinttion  is  to  be  made,  whether  the  damage  hath  happened  within  or 
beyond  the  half  of  the  voyage  :  if  it  has  happened  within  the  firft  half  part 
of  the  voyage,  then  the  goods  are  to  be  valued  at  the  price  they  coft, 
without  any  deduftion  whatever  :  but  the  damage  having  happened  beyond 
that  half  of  the  voyage,  then  the  goods  are  to  be  eftimated  at  the  rate  they 
would  have  fetched  at  the  place  of  unloading,  deducing  thereout  the  duties 
and  charges  paid  and  dilburfed  on  them,  or  which  are  ftill  to  be  paid  or 
borne,  as  they  muft  have  been  paid  or  fatisfied  on  arrival  at  the  place 
of  deftination. — Ordin.  of  Roll. 

16.  It  fiiall  likewife  be  a  grofs  average,  if  it  fliall  happen  that  the  captain 
of  a  loaded  fliip  in  profecution  of  his  voyage  fliall  find  himfelf  obliged  by  bad 
weather,  fear  of  enemies,  or  any  other  unavoidable  accident,  to  put  into 
fome  port,  either  to  repair  the  fiiip,  or  to  fecure  himfelf  from  dangers ;  and 
in  his  detention  fliall  want  money  on  credit,  or  rather  on  bottomry,  and  not 
being  able  to  meet  with  it,  is  obliged  to  fell  fome  goods  at  low  prices,  and  for 
lefs  than  the  juft  value  which  they  would  have  at  the  port  they  were  bound  to ; 
in  this  cafe,  it  appearing  by  creditable  vouchers  that  the  afore-mentioned,  and 
the  faid  diminution  of  goods  was  done  for  the  common  benefit,  it  fliall  be 
accounted  as  grofs  average,  and  paid  proportionably  by  fliip  and  cargo ; 
dedufting  what  fliall  be  found  to  have  been  employed  in  the  purchafe  of 
provijions,  payment  of  wages,  or  any  other  thing  particular  to  the  faid  Jliip, 
and  her  crew  ;  becaufe  this  fliall  be  efteemed  for  vl  fingle  average,  for  account 
and  charge  of  the  captain. — Ordm,  of  Bilb. 

17.    The 


26o  GOODS. 

17.  There  are  many  authors  who  infifl  that  to  authorife  afts  to  be  dont 
for  the  general  fafety,  the  cafe  mud  not  only  be  preffmg,  but  the  clanger  mufl. 
be  evident,  and  the  fliipwreck  or  capture  manifefl ; — but,  this  is  extravagant ; 
it  might  be  imprudent  to  wait  'till  the  lafl  extremity,  becaufe  then  there  might 
be  no  refource. — Statute  of  Lubeck,  c.  3.    n.  3. 

18.  If,  to  avoid  a  total  lofs,  the  fliipwreck.  Sec.  being  imminent,  tlic 
captain  and  crew  fliould  judge  it  proper  to  run  thejhip  ajliore,  the  damage 
thereby  occafioncd  will  be  a  grofs  average.- — Confol.  del  Marc,  c.  192,  193. 
—Roccus,  62,  234,  ^00.— Ca/a  Regis,  difc.  45.  n.  60. 

19.  The  cafes  from  which  grofs  averages  refult  are  fo  variable  in 
circumflances,  that  they  cannot  well  be  ftipulated  or  provided  for  by  any 
ordinance ;  thofe  matters  are  left  to  the  commiffioners,  to  be  by  them  decided 
and  regulated  according  to  law,  reafon,  and  equity. — Or  din.  of  Amfl, 

20.  See  Accident,  Africa,   Average,  Bottomry,  Bounty,  Community,  Con- 
tribution,   Cutting,    Damage,    Deck,     Detention,    Eajl-India    Ships,    Free   of 
Average,   Freight,   Goods,  Jettfon,  Lighter,  Market,  Pcrifiable-Commodities, 
Pilaic,    Pilotage,    Repair,    Refpondcntia,    Running   Foul,    Ship,    Valuation^ 
Wear  and  Tear. 

GOODS. 

1.  TT'VERY  perfon  making  infurance  under  the  general  expreffion  of 
-*— '  goods,  ought  not  to  conceal  any  thing  he  may  know  to  deferve  a 
p-reater  premium  than  is  commonly  given :  and  for  any  damage  happening  to 
goods  more  liable  to  it,  than  others  infured  at  a  low  premium,  the  infurer 
ought  not  to  be  anfwerable  any  further  than  in  common  with  the  reft  of  the 
cargo  not  fo  fubjeft  to  damage. — According  to  the  laws  of  feveral  places, 
fuch  things  as  in  their  nature  are  foon  corruptible,  or  perifiable,  or  contraband 
goods,  which  in  time  of  war  are  liable  to  confifcation,  are  not  to  be  underftood 
under  the  general  exprelfion  of  goods,  or  merchandife  ;  fmce  the  infured  is 
obliged  not  to  conceal  any  thing  from  the  infurer  relating  to  the  rifque  he 
takes  on  him :  it  may  neverthelefs  happen  that  through  the  unwarrantable 
proceedings  of  others,  the  fbip  may  be  expofed  to  greater  danger  than  the 
infured  may  know,  or  be  aware  of;  in  which  cafe  the  infurer,  not  the  infured, 
is  accountable  for  any  lofs  or  damage. — 1  Mag.  9. 

2.  The  ancient  ordinances  of  infurance  made  at  Amfterdam,  Middleburg, 
and  Rotterdam,  allow  corn,  fruits,  wine,  beer,  oil,  pickled  herrings,  fugar, 
quickfilver,  honey,  red  oker,  butter,  cheefe,  meat,  filh,  hops,  fnups,  feeds,  or 
ammunition,  to  be  comprehended  under  the  general  exprcfiion  of  merchan- 
dife: — ^but  in  the  ordinances  of  the  cities  of  Rotterdam,  publifhed  in  1721, 
and  of  Amfterdam,  in  1744,  only  ammunition,  arms,  gold,  filver,  and  jewels, 
are  ordered  to  be  declared  ;  and  all  the  other  above-recited  goods  may  be 

infured 


G        O        O        D        S,  261 

infured  under  the  general  title  of  merchandife  ;    but  the  infurer  Ihall  not  be 
liable  to  make    good    any   damage    that  (hall   happen   to  the  afore-recited 

commodities,  under  teii  per  cent. : the  French  ordinance  only  explains  in 

general  terms  that  the  decay,  wafle,  and  lofs,  happening  through  the  natural 
tendency  of  the  goods  to  corruption,  (hall  not  fall  on  the  infurer ;    and  that 
goods  lubjetl  to  leakage  (hall  be  expreffed  in  the  policy ;    and  if  not,  the 
infurer  fliall  not  be  anfwerable  for  damages  befalling  them  by  tempeft,  except 
the  infurance  be  made  upon  returns   from  foreign   countries : — the  Pruffian 
ordinance  intimates  that  all  goods  fubjeft  to  corruption,   and  leakage,  ouo-ht 
to  be  defcribed  in  the  policy  : — the  Hamburgh  ordinance  excepts  againft  the 
following  goods  being  underftood  under  the  expreflion  of  merchandife,  viz. 
fait,  corn,   raifins,  plums,  vitriol,  dry  fifh,  oker,  hemp,   flax,  and    untarred 
cordage ;  powder  and   lead,    cannon    and   ball,    arms,    muflcets    and  pillols, 
brimftone,  falt-petre,  pitch  and  tar;  materials  for  the  ufe  of  fliips ;    fuch   as 
cordage,  fails,  mafts,  and  every  thing  elfe,  which  by  powers   at  war  may,  or 
fhall,  be  prohibited  from  being  carried  to  their  enemies : — and  the  Swedifh 
ordinance  enjoins,  that  if  jewels,  pearls,   or  any  other  precious  commodities, 
coined  and  uncoined  gold  and  fdver,  be  packed  up,   in  or  with  other  goods, 
it  (hall  be  expreffed  in  the  policy ;    as  fhall   alfo  all  warlike   commodities, 
diflinguifhing  them  by  their  names ;  and  likewife  all  perifliable  and   leaking 
merchandife,  mentioned   in  the  preceding  ordinance   of  Hamburgh  ;    unto 
which  were  added,   furs,  books,  paper,  and  feeds  : — the  recopilation  of  the 
Spanifli  Weft-Indian  laws  declares,  that  under  the  general  expreffion  of  goods, 
are  not  to  be  underftood,  cattle,  flaves,  fhips,  and  fliips'  ftores,  freights,  and 
artillery : — and  moft  of  the  preceding  particulars  we   find   in  the   ordinance 
publifhed  at  Florence,  June  1526: — •which  plainly  demonftrates,  that  things 
were  then  as  maturely  confidered  as  now,  and  the  deference  in  the  rifque  of 
the  goods  infured  as  nicely  regarded  ;  for   this   ordinance  fays,   "  that  under 
'•'  the  general  name  of  merchandife,  fhall  not  be   underftood,  flaves,    fruits, 
"  horfes,  corn,  wines,  faked  fifh,  vitriol,  alum,  precious  ftones,  oils,  iron  ore, 
*'  houfliold  goods,  fine  wrought  or  coined  gold  and  filver ;    and  whoever 
"  intends  to  have  fuch  forts  of  goods  infured,  fliall  be  obliged  to  exprefs  them 
"  in  the  policy ;    or  it  fliall   ipfo  jure  be  of  no   validity  :" — this  fliews  that 
people  then    forefaw,  as  well  as  we   do  now,    how  the  infurers   might  be 
wronged,  by  not  knowing  in  what  manner,  and  upon  what  fort  of  goods 
they  underwrote. 

Q,  Gold  and  filver  coined  and  uncoined,  pearls  and  other  jewels,  may 
be  infured  at  London,  Hamburgh,  and  feveral  other  places,  under  the  general 
expreffion  of  merchandife  ;  but  as  the  exportation  of  gold  and  filver,  is 
prohibited  in  many  countries :  it  is  every  where  underftood  that  the  infurers 
are  not  liable  for  the  rifque  of  a  clandeftine  exportation,  at  the  places  where 

fuch  prohibitions  fubfift. — 1  Mag.  10. An  infurer  of  goods  on  board  a 

veffel  is  underftood  to  infure  the  money,  gold,  filver,  rings,  diamonds,  and 
jewels,  there  being  ;  all  which  are  comprehended  under  the  appellation  of 
goods  fliipped  on  board,   although  not  cxprefsly  fpecified : — Santcrna  fays,  in 

3  T  explicit 


262  GOODS, 

explicit  terms,  that  if  the  money,  jewels,  and  rings,  were  intended  for  fale, 
or  to  purchafe  other  goods,  they  come  under  the  denomination  of  goods, 
and  are  comprehended  in  the  infurance :  he  calls  them  goods,  as  being  liable 
to  contribution,  in  like  manner  as  other  goods  ;  and  that  merchants  in  making 
their  infurances,  mav  not  avail  themfelves  of  the  quirks  of  the  law  rather  than 
of  truth ;  and  lallly,  becaufe  all  things  which  are  defigned  for  commerce,  are 
to  be  laro-ely  interpreted ;  and  even  the  confifcation  of  a  Ihip's  cargo  extends 
to  the  coined  money  on  board. — Roccus,  162.  not,  17. 

4.  Any  one  who  has  laden  different  forts  of  goods,  and  intends  to  run  part 
of  the  rifque  himfelf,  or  to  have  them  infured  at  different  places,  hath  it  in  his 
option,  which  of  thofe  goods  he  will  have  inferted  in  fuch  or  fuch  a  policy, 
and  may  chufe  from  amongfl  them  fuch  forts  or  parcels  for  himfelf,  as  are 
Icafl;  expofed  to  average :  but  then  this  choice  ought  to  be  made  at  the  time 
of  makincr  the  infurance,  and  the  marks,  and  numbers  of  the  merchandife 
be  therein  diftinguifhed  ;  for  if  an  infurance  has  at  the  beginning  been  made 
under  the  general  expreflion  of  goods,  and  fome  time  after  the  infured  wants 
to  have  it  exprell'ed  in  the  policy,  as  is  frequently  the  cafe,  that  the  rifque  is  to 
run  on  fuch  or  fuch  bales,  the  infurer  has  a  right  to  enquire  into  the  caufe  of 
this  fpecification,  and  particularly  into  the  quality,  and  condition  of  the 
goods ;  fnice  as  long  as  they  continued  infured  under  the  general  exprefTipn 
of  merchandife,  and  there  happened  to  be  on  board  others  of  greater  value, 
a  joint  obligation  fubfifted  among  the  infurers ;   and  none  concerned  therein 

ought  to  be  prejudiced  by  feparating  or  dividing  fuch  goods. An  equal 

obligation  may  indeed  more   properly  be  faid  to  fubfifl  amongfl  fuch  of  the 
infurers  as  had  underwrote  for  the  value  of  fuch  goods  as  were  brought  aboard 
at  one  time,   and  who  previous  thereto  had  underwrote  a  policy  ;    for  it  is 
certain  that  if  the  fhip  wherein  thefe  goods  were  loaded  as  to-day,  fliould  be 
burnt  at  night,  none  would  infure  them  to-morrow :   the  rifque  of  the  infurers 
who  firjl  underwrote   (hould  not  therefore  be  confounded  with  that  which 
infurers  of  a  later  date  muft  run  ;   efpecially  at  thofe  places  where  they  anfwer 
for  the  rifques  the  goods  run  while  they  are  aboard  the  lighters  in  their  paflage  to 
the  (hip  ;  and  only  thofe  infurers  who  figned  the  firft  policy,  fhould  jointly  run 
the  rifque  on  the  goods  in  the  firft  lighter,  and  fo  on,  according  to  the  value  : — 
for  inftance,  A  at  Hamburgh  caufed,    July   the    ift,  his  brother  B  to  get  a 
policy  of   10,000  marks   made   out  on   goods    to   be   laden  on   board    the 
Conftantia,  for  Cadiz ;   and  July  the   8th  another  likewife   for  the  fame  fum 
by  the  broker  C :  it  happened  that  the  firft  lighter,  bound  aboard  with  goods  to 
the  value  of  fix  thoufand  marks,  on  July  the  9th  was  loft  ;  which,  according 
to  the  laws  of  Hamburgli,  muft  fall  proportionably  upon  all  the  infurers  who 
had  figned  the  firft  policy ;    thofe  on  the  fecond  contributing  nothing  to  it : 
now  ftiould  all  thefe  goods,  which  were  intended  to  have  been  fhippcd,  have 
been  for  the  account  of  the  perfon  living  at  Cadiz ;  and  he  had  made  his 
infurance  there ;  then  according  to  the  Spanifh  law  thofe  M'ho  had  firft  under- 
wrote to  the  amount  of  6,000  marks  muft  alone  have   paid  it,    and  all  the 
other  infurers  contribute  nothing. 

5-    ^^ 


I 


GOODS.  263 

5.  In  England,  the  infurer's  rifque  does  not  commence  on  goods  till  they  are 
aboard  the  fhip ;    the  accidents  therefore  which  they  are  expofed  to  in  the 
lip-hters  do  not  concern  them:    neverthelefs  a  difference  oudit  to  be  made 
between  infurers   who  have  underwrote  under  feveral.  dates ;    for  fuppofe  a 
perfon  had  goods  to  fliip  to  the  value  of  2,oool.  ;    on  June  the    ifl  he  fent 
aboard  ten  bales  marked  M,  No.  1  to  10,  which  had  coft  i,oool. ;   and  on  that 
day  he  had  infurance   done  to  that  value  under  the  general  exprcffion  of 
merchandife  :  on  June  the  15th  he  fliipped  ten  bales  more,  M,  No.  11  to  20, 
to  the  value  alfo  of  1,000,  and  caufed  a  like  infurance  to  be  made  :  now  on  the 
bales  1 1  to  20  (perhaps  from  coming  laft  aboard,  and  being  flowed  in  a  place 
fubjeft  to  damage)  fome  average  was  found  at  their  unloading  ;    why  fiiould 
the  infurers,  who  moft  evidently  till  the  15th  of  June  run  their  rifque  folelyand 
feparately  on  No.  1  to  10,  have  amy  thing  to  do  with  what  happened  to  No.  11 
to  20,  fhipped  afterwards  ? — Hence  it  may  be  remarked,   that  though  it  has 
been   a  cultom  in  London,   to  bring  all   the  infurers,   who  have  figned  at 
feparate  times  for  the  account  of  one  and  the  fame  perfon,  under  the  general 
expreffion  of  merchandife,  into  one  common  rifque  or  average;   ycx.  fuch  a 
cujlom  ought  to  be  Laid  afide,  as  it  is  palpahLy  not  founded  in  equity,  confidering 
the    remarkable  difference  there  may  be  in  the  beginning,    and  duration  of 
the   rifque,  by  goods  being  fooner  or  later  fliipped   and  infured ; — but   with 
refpect  to  goods  from  abroad,  the  particular  time  of  their  having  been  (hipped 
can  very   feldom  be  known  ;   and  therefore    an    infurer  would   dcferve  very 
little  efteem,  who,  inftead  of  making  fatisfaction  for  damages,   fliould  pretend 
to  demand  of  the  infured,    in  fuch  cafe,    what  it  is  hardly  poffiblc  for  him  to- 
know.      No  infurer  ought  to  refufe,   when  demanded,  to  admit  a  particular 
explanation  of  goods  infured  under  the  general  expreffion  of  merchandife, 
when  fuch  explanation  is  done  only  for  the  better  underftanding,   or  deter- 
mining the  rifque,  and  with  no  ill  defign. When  infurance  upon  the  felf- 

fame  goods  is  made  at  different  places,  it  is  very  material  to  know  the 
difference  of  the  laws  and  cuftoms  in  force  at  thofe  parts,  in  order  to  make 
the  proper  explanations  in  each  policy. 

6.  If   an  infurance    be   made  under    the  general   denomination  of  goods 
J         and  merchandifes,  or  whatever  the   intereft  of  the   infured  might  confift  in, 

nothing  excepted ;  and  it  be  found  that  the  rifque  is  run  on  wool,  flax, 
hemp,  ftock-fifli,  herrings,  corn,  feed,  fugars,  peas,  beans,  cheefe,  books, 
and  papers,  the  infurers  fliall  be  free  of  damage  under  ten  per  cent.     And 

it  is  fpecially  forbidden  to  contract  in  the  policy  with  a  contrary  claufe. But 

if  infurance  be  made  by  policy  on  any  of  thofe  wares,  and  merchandifes, 
expreffing  in  the  fame,  that  the  rifque  fliall  be  run  thereon,  then  the  infurer 
fhall  only  be  free  of  damage  under  three  percent. — Or  din.  of  Amji. 

7.  See  Abandonment,  Accident,  Average,  Bottomry,  Commencement  of 
Voyage  or  Rfque,  Commodity,  Company,  Concealment,  Contribution,  Damage, 
Eaft-India  Ships,  Free  of  Average,  General  Average,  Leakage,  Lighter, 
Particular  Average,  Pcrifhable  Commodities,  Policy,  Prior-Infurance,  Prohibited 

Goods, 


2^4  GREENLAND. 

Goods^  Refpondentia,  Rifqiie,  Ship  or  Ships,  Ships  of  War,  Stowage,  Stranded, 
Valuation. 

GRAIN. 

1.  r^  RAIN,   fignifies   corn  ;— the  feed  of  2ii\y^xmx..~Johnf.  Did.— It 
vJ"    comprehends  all  forts  of  corn,  and  the  feeds  of  divers  plants  : — the 
fruit,   or  feed,   growing  in  the  ear. — Pojll.  Did. 

2.     See  Commodity,  Corn,  Peafe,  Seed. 


GREENLAND. 

1.  np'HE  undfer-mentioned  fliip  was,' in  March  1775,  infured  in  the  ufual 
-■-  manner,  at  and  from  Liverpool  to  the  Greenland  Seas,  during  her 
ftay  and  fifliing  there,  and  back  to  Liverpool : — meeting  with  damage  in 
thofe  feas,  (lie  returned  to  Liverpool  fooner  than  fhe  might  otherwife  have 
done  ;  and  being  repaired,  was  fent  difccond  time,  the  fame  feafon,  to  the 
filhery  :  the  fame  underwriters  infured  her  again  ;  and  it  was  agreed  between 
the  infurers  and  infured  to  refer  to  the  decifion  of  arbitrators,  "  whether  the 
^^y?  policy  included  the  whole  rifque  (the  fhip  having  come  home  by  necelfity 
to  repair)  and  confequently  whether  a  return  of  premium  fliould  be  made  on 
the  fecond  policy?"^ — Or,  "  -whether  the  infurers  fhould  keep  the  premium' 
on  both  policies,    and  the   tzoo  voyages  be  confidered  as  diftinB  and  feparate 

rifques?" The  author  of  this  work,  being  an   infurer  on   both  policies, 

delivered  to  the  arbitrators  his  reafons,  as  follows  ; — viz. — "  At  the  under- 
writing of  a  Greenland  fliip,  the  infurers  have  in  contemplation  how  the 
voyage  is  circumlianced  and  regulated,  by  the  flat.  1 1  Geo.  3.  c.  38  ;  which 
in  f  6.  requires  her  to  ftay  in  the  Greenland  feas  till  the  loth  of  Auguft, 
unlefs  file  departs  with  the  blubber  or  fins  of  one  whale,  or  '  unlefs  fhe  fhall 
he  forced,  by  fome  unavoidable  accident  or  necefjity,  to  depart  fooner :' — 
in  which  cafe,  on  delivering  up  the  licence,  the  voyage  is  deemed  to  be 
ended,  -and  the  fhip  entitled  to  the  bounty  ;  which  has  accordingly  been  paid 
to  the  owners  of  the  Perfeverance,  Capt.  Smith  (the  fliip  in  queftion) — 
and  fhe  brought  home  feals,  and  regularly  entered  and    difcharged 

them. — This  termination  of  the  voyage  by  the  aft  of  parliament,  and  the 
confequent  receipt  of  the  bounty  (without  being  obliged  to  go  again  and 
ftay  till  the  loth  of  Auguft)  ought  to  be  the  rule  between  the  aflured  and 
afturers:  otherwife,  what  ftiall  be  deemed  the  termination  of  a  Greenland 
voyage?  for,  in  reality,  moft  of  the  Greenland  fliips -return  from  fome 
neceffity,  or  the  danger  of  a  longer  ftay  ;  and  therefore  few  make  all  the 
advantage  they  wifli  for  or  might,  were  it  not  for  fuch  danger  and  the 
rifque  of  loftng  the  bounty  :  yet  this  '  not  having  made  all  the  advantage 
that  they  might'  is  the  only  pretence  made  by  the  owners  of  the  Perfeverance 
for  thinking  that  the  voyage  was  not  ended  by  the  fhip^s  firft  return  home. — 
■    ■■""'  Suppofe 


GREENLAND.  265 

Suppofe  flie  had  returned  fo  early  the  firft  time  as  to  have  received  the 
bounty,  difcharged  her  fifh,  repaired,  gone  a  fecond  time  to  the  feas, 
caught  fifh,  returned  a  fecond  time,  through  fome  accident  or  necefhty, 
difcharged  fuch  fecond  cargo,  repaired  fpeedily,  and  gone,  and  returned,  in 
like  manner  a  third  time,  and  at  lafl  been  totally  loft ;  would  it  be  all  072e 
voyage  ?  and  if  it  be  not  limited  to  her  Jlrji  return  home,  to  which  (hall  it  be 
limited  ? — would  it  be  reafonable  that  the  underwriters  fhould  pay,  on  each 
of  her  voyages,  averages,  perhaps  of  30  or  40  per  cent,  and  on  the  lafta 
total  lofs,  and  all  for  07ie  premium  ?  whilft  the  allured  were  (through  thofe 
very  accidents)  gaining  the  bounty,  repeatedly  bringing  home  fifh,  and 
expofing  the  fhip  an  unlimited  time  to  conftant  danger  (under  pretence  of 
making  all  the  advantages  they  could)  till  finally  loft,  to  the  amount  of  200I. 
per  cent,  or  more,  it  might  be,  in  fuch  manner,  to  the  damage  of  the  infurers 
on  the  Ihip. — If  this  plea  of  returning  to  refit  (difcharging  fifti,  fecuring  the 
bounty,  going  out  a  fecond  and  a  third  time)  were  allowed,  it  would  be  an 
encouragement  for  every  fliip,  on  very  flight  pretences  of  being  leaky,  &c.  to 
run  home  for  fuch  beneficial  purpofes,  and  make  two  or  three  advantageous 
voyages,  for  a  fingle  premium,  without  any  limitation  of  the  infurers  rifque. 
— The  end  of  the  voyage  is  clearly  defcribed  in  the  policy  to  be  the  Ihip's 
arrival  from  the  Greenland  feas  back  to  her  port : — 'tis  no  matter  in  what 
condition  Are  arrives  : — if  flie  has  been  at  the  feas,  endeavoured  to  catch 
fifh  there,  returned  to  her  port,  and  ended  the  voyage,  within  the  meaning 
of  the  legifiature,  fo  as  to  be  entitled  to  the  bounty,  the  voyage  is  ended  as 
to  the  infurers." The  arbitrators  determined  in  conformity  with  this  opinion. 

2.  A  SHIP  being  mhred/rom  the  Greenland  feas,  or  Davis's  Streights, 
the  rifque  commences  from  the  time  that  her  fifliing  ends : — ■"  turba  18  merca- 
torum  Amfterdammenfium  affirmabat,  reditum  incipere,  poftquam  finita  erat 
pifcatio,  et  de  eo  inter  partes  fatis  conveniebat." — BynkerJJioek,  Qiicefi.jur.  priv. 
1.  14.  c.  17. 

3.  By  Stat.  11  Geo.  3.  c.  38.  f.  1. — Any  perfon  or  perfons  may  for  and 
during  15  years,  from  the  25th  of  December  1771,  import  whale  fins,  oil  or 
blubber  of  whales,  feal  oil,  feal  fl-cins,  or  any  other  produce  of  fcals,  or 
other  fifli  or  creatures  taken  or  caught  in  the  faid  Greenland  feas,  or  Davis's 
Streights,  in  Britifli  fhips,  without  paying  any  cuftom,  fubfidy,  or  other  duty 

for  the  fame. S.  5.  On  the  return  of  fuch  fliip  to  the  port  to  which  the 

mafter  and  mate  declared,  on  oath,  their  intention  to  return,  and  conforming 
to  the  particulars  required  by  this  aft,  payment  fhall  be  made  to  the  mafter 
or  owners,  or  to  his  or  their  affigns  (by  the  receiver-general  of  the  cuftoms) 
of  the  bounty  following ;  viz.  for  every  fuch  fhip  as  fhall  proceed  on  the 
faid  fifhery,  from  the  25th  of  December  1771,  to  the  25th  of  December  1776, 
40s.  per  ton  ;  from  the  25th  of  December  1776,  to  the  25th  of  December  1781, 
30s.perton;  and  from  the  25th  of  December  1781,  to  the  25th  of  December 

1786,  20s.  per  ton. S.  6.  Not  unlefs  fuch  ftiip  fhall  fail  on  or  before  the 

loth  of  April  in  each  year,  and  fhall  continue  with  her  crew  in  the  Greenland 

3  U  feas, 


266  GUARANTEE. 

feas,  or  Davis's  Straights,  or  the  adjacent  feas,  diligently  endeavouring  to 
catch  whales,  &c.  and  Ihall  not  depart  from  thence  before  the  loth  of 
Auguft  then  following,  unlefs  fuch  Ihip  fhall  be  laden  with  the  blubber  and 
fins  of  one    whale,   caught   before  that  time  ;    or   fliall  be  forced  by  fome 

unavoidable  accident  or  necelfity,  to  depart  fooner  from  thofe  feas. S.  lO. 

Ships  under  the  burthen  of  200  tons  fliall  be  entitled  to  the  faid  bounty. 

S.  11.  No  fhip,  above  the  burthen  of  400  tons,  fliall  be  entitled  to  a  larger 

bounty  than  a    fliip  of  400  tons    would  be  entitled  to. S.    13.  Owners 

may  injure  the  bounty  which  they  would  be  entitled  to  upon  the   return  of 

fuch  fhip. S.   14.  Every   fliip  built  or   fitted  out   in  any  of  his  majefly's 

dominions  in  America,  not  being  more  than  two  years  old  from  the  firft 
building,  that  proceeds  from  any  port  in  his  majefty's  American  dominions 
on  the   fifliery  aforefaid,   manned  and  navigated  as  by  the  laws  now  in  force 

is  direfted  ; S.  15.  On  the  arrival  of  fuch  fliip  at  a  port  in  Great-Britain, 

from  the  Greenland  feas,  or  Davis's  Streights,  where  they  fliall  unload,  the 
proper  officers  of  the  cufl.oms  of  fuch  port  fliall  proceed  and  pay  the  bounty. 

in  fuch  manner  as    is  herein  before  directed  concerning  Britifli  fliips. 

S.  16.  And  all  fliips  that  fliall  be  fitted  out  in  America,  fliall  fail  on  or  before 
the  ift  of  May,  and  fliall  not  depart  or  leave  Davis's  Streights,  or  Greenland, 
and  feas  adjacent,  before  the  20th  of  Augufl;,  unlefs  fuch  Ihip  fliall  be  ladea 
with  the  blubber  and  fins  of  one  whale,  caught  before  that  time,  or  fiiould 
meet  with  any  unavoidable  accident,  fo  as  to  endanger  the  lives  of  the 
ihip's  crew- 

4.     See  Bounty,  Damage,  Fiflierics,  Ireland. 


GUARANTEE. 

See  Abandonment,  Injur ance.  Injur er.  Owner,  Reinjurance. 


HAMBURGH. 


H. 


HAMBURGH. 

1.     Policy,  at  Hamburgh,  on  Ship. 

WE  aflurers  here  underwritten  afTiire,  every  one  for  himfclf  and  his  heirs,  to 
the  funis  figned  by  us  underneath,  upon  the  receipt  of 
premium  upon  the  the  hull 

of  the  fhip,  her  marts,  fails,  anchors,  guns,  ammunition,  provifions,  and  all  other  utenfils 
and  appurtenances,   called  commanded  by 

as  mafter,  or  by  any  other :   bound  for 
which  with  our  confent  is  valued  at  Pray  God  fend  her  in  fafety  !    Wc 

take  upon  ourfelves  the  danger  and  rifque  of  all  manner  of  damage  and  misfortunes, 
that  may  befall  or  happen  to  this  the  hull  of  the  fliip,    in  the 

whole  or  in  part,  during  this  prefent  voyage,  by  any  accident  whatfoever,  whether  by 
perils  of  the  fea,  ftorms  and  tempefts,  fhipwreck,  running  afliore,  being  failed  over, 
fire,  carelefTnefs,  and  fteering  a  wrong  courfe,  arrefts  and  reftraints  of  kings,  princes,  and 
republicks,  being  taken  and  carried  in  by  enemies,  reprifals  and  confilcation,  violent 
plunderings  of  privateers  or  pirates,  negleB  and  malice  of  the  captain  or  his  mariners,  or  by 
any  other  accident  or  occafion,  whether  they  can  be  thought  or  not :  for  we  put  ourfelves 
entirely  in  the  place  and  ftead  of  to  keep  him  free  and 

harmlefs  from  all  damage. — And  this  rifque  begins  from  the  day  and  hour  that  the  fhip 
takes  in  any  part  of  her  cargo  or  her  ballad,  till  fhe  is  arrived  at 

and  her  whole  loading  is  dijcharged  there. — We  farther  agree,  promife,  and  engage,  all 
and  each  of  us  in  particular,  that  we  will  well  and  truly  pay  the  refpeftive  fums  by  us 
fubfcribed  hereunto,  or  fuch  part  thereof  as  will  make  full  amends  to  the  aflured  for  his 
lofs,  and  the  extra  expences  he  has  been  at,  in  cafe  any  misfortune  or  damage  fliould 
befall  the  faid  hull  of  the  fiiip,  either  by  any  of  the  means  before  fpecified,  or  in  any  other 
manner  or  fhape  whatever,  and  to  make  fuch  payment  within  two  mo7iths  after  regular 
notice  has  been  given  by  the  aflured  of  the  unhappy  accident,  and  requifite  proofs 
exhibited  of  the  damage  fuffered  thereby. — And  we  accordingly  fubmit  ourfelves  to  the 
ordinance  relating  to  afllirances  and  averages  of  this  city  of  Hamburgh,  in  all  the  claiifes 
and  conditions,  whether  printed,  or  added  in  writing,  which  latter  are  equally  valid,  as 
the  printed  ones,  if  not  preferable,  to  them.  For  which  we  bind  our  goods  and  chatties, 
without  fraud  or  deceit.     Thus  concluded  by 

Sworn-broker. 
Hamburgh,  the 

2.    Policy 


268  HAMBURGH. 

2.     Policy  at  Hamburgh,  for  Money  lent  at  Bottomry  on  a  Ship,  or  Goods, 

and    Freight. 

WE  the  underwritten  afTurers,  for  ourfelves  and  our  heirs,  alTure  unto 
each  of  us  for  the  fum  underwrote  by  him  hereunto,  upon  the  receipt  of 
premium,  upon  bottomiy  money,  which  he   has  advanced  on  the  bottom  of  the  fliip  (or 
upon  goods,  and  likewife  the  freight,  fiiipped  on  board  of  the  fhip)  called  the 

whereof  or  any  other,  is  mafter,  from 

to  where  fhe  is  to  unload  and  difcharge  her  cargo.   Pray  God  conduct 

her  in  fafety!  We  take  upon  ourfelves  the  danger  and  rifque  of  all  accidents  and  misfor- 
tunes, which  may  befal  or  happen  to  this  fhip  [or  thefe  goods]  to  the  whole  or  part 
thereof,  in  any  fliape  whatfoever,  during  this  prefent  voyage;  whether  it  be  by  perils 
of  the  fea,  ftorms  and  tempefts,  fliipwreck,  running  afhore,  being  failed  over,  fire, 
careloffnefs,  and  fleering  wrong  courfes,  arrefls  and  reflraints  of  kings,  princes,  or  repub- 
licks,  being  taken  and  carried  in  by  enemies,  reprifals  and  confifcations,  forcible  plundering 
of  privateers  or  pirates,  millakesorbadconduft  of  the  mafter  and  his  mariners,  and  by  any 
manner  of  accident,  whether  to  be  imagined  or  not,  from  the  day  or  hour  that  this  fhip 
did  begin  to  take  it's  cargo  or  ballad  on  board  [or  that  the  goods,  on  which  the  money 
is  lent,  are  carried  from  the  fliore  on  board  of  ]  till  it  is 

arrived  at  and  has  there  difcharged  her  whole  cargo.     We  put  ourfelves 

entirely  in  the  place  and  ftead  of  to  keep  him  harmlefs  from   any  lofs ; 

and  we  promife,  in  cafe  any  misfortune  or  damage  fliould  happen  to  this  fliip,  or  thefe 
goods  the  money  is  lent  upon,  or  to  the  freight,  by  the  above-mentioned,  or  any  other 
manner  and  means,  that  we  will  pay  to  the  fums  by  us  refpeftively 

underwrote  hereunto,  or  fuch  part  thereof  as  fhall  be  fufificient  entirely  to  indemnify  him, 
with  all  his  extraordinary  expcnces,  within  two  months  after  due  notice  has  been  given, 
and  the  requifuc  proofs  exhibited  of  the  lofs  or  damage,  and  this  fairly  and  juflly  without 
any  contradiftion.     We  accordingly  fubmit  ourfelves  to,  &c. 

3.     Policy  at  Hamburgh,   on  the  Life  of  a  Perfon. 

WE  the  underwritten,  for  us  and  our  heirs,  affure  unto  each 

of  us  the  fum  by  us  figned  hcreunderneath,   at  per  cent,  premium, 

on  the  life  of  the  perfon  of  failing  as  on  board 

of  the  fliip  called  the  bound  from  to 

or,  in  cafe  this  fhip  fiiould  be  loft,  which  God  forbid !  and  this  perfon  happened  to  be 
faved,  then  on  any  other  fhip,  aboard  whereof  he  fliall  embark  himfelf,  or  even  if  he  was 
to  purfue  his  journey  by  land.  Pray  God  grant  him  a  fafe  paffage !  We  take  upon 
ourfelves  the  hazard  and  rifque  of  this  perfon,  -whether  he  lofes  his  life  and  dies  in  a  natural 
way  or  by  any  violent  or  other  means  whatever,  during  the  prefent  voyage,  from  the 
time  he  goes  on  board,  until  his  fafe  arrival  at  the  place  he  is  bound  to,  and  is  landed 
again  alive  on  fhore  from  on  board.  We  engage,  if  this  perfon  dies  a  natural  death  during 
the  voyage,  or  before  he  is  landed  on  fliore  from  on  board  after  his  arrival,  or  before  he 
arrives  at  that  place  either  by  water  or  by  land,  that  we  will  then  pa}'  to  his  heirs,  or  to 
the  bearer  of  this  policy,  the  refpeftive  fums  by  each  of  us  here  underwrote  without  delay. 
We  accordingly  fubmit  ourfelves  to,  &c. 

4.     See    Bottomry,   Fire,   Lives,  Ordinance. 

HAND- 


[    269    ] 
HAND-IN-HAND     FIRE-OFFICE. 

I.  npHE  conflitution  of  this  fociety  will  appear  by  tlie  following  "  Abjlraci 

-^     of  the  Deed  of  Settlement  o^  the  Amicable  Contributionjliip,  or  Hand- 

in-Hand  Fire-Office." — viz. 1.  Twenty-four  direftors    for  managing   the 

affairs  of  the  office,  are  to  be  chofen  out  of  the  members  or  perfons  infured, 
by  balloting  ;  twelve  to  live  eallward,  and  twelve  weflward  of  Fleet  and 
Holborn  bridges  ;  eight  new  ones  to  be  chofen  every  year,  on  the  three  days 
immediately  preceding  the  general-meeting  in  November,  for  three  years, 
and  the  eight  who  go  out  are  not  to  be  chofen  again  till  the  end  of  one  year. 

2.  The  direftors  are  to  have  no  falary,  ftipend,  or  gratuity  ;  five  of  thera 

to  make  a  board,  except  in  lending  money,,  chuhng  and  difplacing  fervants, 
and  making  bye-laws,  which  muff  not  be  contradiftory  to  the  conflitution 
cftabliffied  by  the  orders  of  general-meetings,   and    are    to  be   read   three 

fucceffivc  board  days,  all  the   direftors   having  notice   to  attend. 3.  No 

perfon  fejving  the  office  in  the  way  of  his  trade,   or  being  a  debtor  thereto, 

is  capable  of  being  a   dire61or. 4.  Every  perfon   chofen  a  direftor  is  to 

prove  himfelf  qualified,  that  is,  infured  in  the  office,   before  he  afts. 

5.  Such  direftors  as  refufe  or  negleft  to  aft  for  one  calendar  month,  to  be 
difplaced  by  the    afting   direftors,    and   others    chofen    in   their  room. 

6.  Servants  of  the  office  are  not  to  intermeddle  in  the   choice  of  directors. 

7.  The  diredors  are  to  chufe  truflees  from  among  themfelves,  to  execute 

policies,  and  take  fecurities  in  their  names,  who  are  to  be  indemnified  in 
performing  all  lawful  a6ls  in  the   execution  of  their  trufts,  and  not  to  be 

charged  with  each  other's  afts  and  defaults. 8.  When  but  two  remain  in 

any  truft,   new  ones  are  to  be   chofen  :    they  are   to  take  fecurity  from   the 

treafurers. 9.  The  lawful  afts  of  the  directors  and   trufiees  bind   all  the 

members  of  the  contributionffiip. 10.  The  direftors  may  lend  any  fum  or 

purchafe  on  parliamentary  fecurity  :  in  cafe  of  a  lofs  or  damage  by  fire,  may 
rebuild  or  repair,   fo  that  they  expend  no  more  than  the  fum   infured. 

II.  Orders  of  the  board  of  directors  are  not  to  be  valid  until  they  are 
confiriped  by  the  next,  except  for  the   payment  of  loffes  and  the   common 

charges    of  the  office. 12.  Any  direftor  may  enter  his  diffent  from  the 

proceedings  or  refolutions  of  the  board  of  direftors,  in  the  minute-book, 

giving  his  reafons. 13.  The  direftors  meet  at  the  office  in  Angel-Court,  on 

Snow-Hill,  every  Tuefday  at  four  in  the  afternoon. 14.  A  general-meet- 
ing of  the  members  is  to  be  held  twice  a  year,  in  May  and  November,  when 
the  accounts  are  to  be  ftated,  not  exceeding  ten  days  after  the  firfl  Thurfday 
in  each ;  or  oftener  if  called  by  five  direftors,  or  any  number  of  perfons 
infured  to  the  value  of  ten  thoufand  pounds  :  notice  of  which,  fourteen  days 
before,  is  to  be  publifficd  in  the  London  Gazette. 15.  The  general- 
meetings  are  to  be  held  in  the  city  of  London,  and  to  continue  not  lefs 
than  an  hour  after  the  chairman  is  chofen:  if  not  lefs  than  forty-eight 
members  are  prefent,  they  have  power  to  make  any  alterations  and  additions 
to  the  laws  of  this  fociety. 16.  The  orders  and  refolutions  of  one  gcneral- 

3  W  meeting 


270  H  A  N  D  -  I  N  -  H  A  N  D    FIRE-OFFICE. 

meeting  mufl  be  confirmed  by  another,  and  enrolled  in  chancery. ly.  A 

perfon  becomes    a   member    on   being   infured    in   this   office. 18.  The 

infurance  commences  on  paying  the  premium  and  depofit,   and   figning  the 

accuflomed  covenant. 19.  The  premium  is  at  the   rate   ol  two  fliillings 

per  cent,  and  the  depojit,  of  ten  (hillings  per  cent,  on  brick  houfcs,  and  of 
double  thofe  fums  on  timber  houfcs  within  London  and  Weflminller,  and  five 
computed  miles  from  the  fame,  for  a  term  not  exceeding  y^i;mjyearj  ; — brick 
houles  beyond  five,  and  fo  far  as  twenty  computed  miles  from  the  faid  cities, 
are  to  pay  three  {hillings,  and  timber  houfes  fix  fliillings  per  cent,  premium : 
and  beyond  twenty,  fo  far  as  thirty  computed  miles  from  the  faid  cities,  being 
the  limits  of  infurance  by  this  office,  brick  houfes  are  to  pay  four  fliillings, 
and  timber  houfes  eight  fliillings  per  cent,  premium  ;  the  depofit  being  the 
fame  : — thatched  houfes,  houfcs  ufed  for  the  refining  of  fugar,  diftil-houfes, 
houfes  ufcd  for  the  baking  of  bifcuits,  glafs-houfes,  turpentine-houfes,  and 
windmills,  are  to  pay  eight  fliillings  per  cent,  premium,  and  twenty  fliillings 
depofit : — brick  buildings  not  above  one  hundred  yards  from  the  Thames, 
from  Iron-Gate  to  Limehoufe-Dock  on  the  north ;  and  from  Battle-Bridge 
to  Cuckold's-Point  on  the  fouth-fide,  are  to  pay  a  premium  of  fix,  and  a 
depofit  of  thirty  fliillings  ;  and  timber  a  premium  of  eight,  and  a  depofit  of 
forty  fliillings  per  cent.  :  brick  buildings  not  above  ten  feet  diftant  from  thofe 
oppofite  to  them,  are  to  pay  a  premium  of  four,  and  a  depofit  of  twenty 
fhillings  ;  and  timber  a  premium  of  fix,  and  a  depofit  of  thirty  fliillings  per 
cent. : — ^lioufes  with  fronts  and  party  walls  of  brick  or  fl;one  are  to  be 
accounted  brick,  and  thofe  which  have  not  fuch  fronts  and  party  walls,  to 
be  accounted  timber  houfes  ;  and  houfes  of  brick  and  timber  are  to  be  deter- 
mined by  the   direfctors  on  the  report  of  the  furveyor : — houfes  fo  foon  as 

tiled  in,  may  be  infured. 20.  Policies  expire  at  fix  of  the  clock  in  the 

evening  of  that  A-dy /even  years  on  which  they  are  dated  :  the  charge  of  each 
policy  is  to  be  two-pence  more   than  the  fl:amp-duty,  and  the  charge  of  each 

entry  of  infurance  is  fix-pence. 21.  On  the   expiration  of  the  property  in 

any  houfe  or  houfes  infured,  the  perfon  infured  may  fettle  their  account,  and 
receive  what  depofit  is  due  to  them  from  the  office,  and  on  failure  thereof, 
fuch  houfe  or  houfes  may  be  infured  by  whoever  is  pojfejfed,  of  the  property. 

22.  On  a  member's  death  no  advantage  is  to  be  taken  of  furvivorfliip, 

but  the  interejl  to  continue  to  the  executors,  adminiftrators,  and  afligns,  of  the 

perfon  infured. 23.  Any  number  of  contiguous  houfcs   may  be  infured  in 

a  policy,  provided  the  value  of  them  exceed  not  eight  hundred  pounds. 

24.  The  members  have  the  liberty  of  infpefling  and  examining  all  the  books 
and  papers  of  the  office ;  and  are  to  pay  towards  lojjcs  in  proportion  to  their 
infurance,  not  exceeding  ten   fliillings  per  cent,  on  brick,   and  double  on 

timber  houles,  more  than  their  money  depofited. 25.  On  any  member's 

exception  to  the  rate  of   a  contribution,   the    next   general-meeting   is   to 

determine  concerning  the  fame. 26.  If  any  infurance  by  the  fame  perfon 

or  perfons,  is  fubfifling  in  this  and  in  any  other  office  at  the  fame  time,  the 
infurance  in  this  becomes  void,  unlefs  allowed  by  the  board  of  direftors,  and 

their  confeat  indorfed   on   the    back    of  the  policy. 27.  AJpgnments  qS 

policies 


H        E        M        P.  271 

policies  are  to  be  entered  in  the  office  within  forty-two  days  after  they  are 

executed,    or    elfe    tlie  affignee    to    have   no  benefit   thereby. 28.  The 

members  are  to  certify  lofTes   forthwith  to  the  board  of  direftors,  and  fuch 
loffes  and  damages  as  are  not  claimed  in  three  months  after  a  fire,  are  not  to 

be  allowed  without  the  confent  of  a  general-meeting. 29.  Loffes  are  to 

be  paid    at  the  end  of  fixty   days  from  the  time  of  the  claim   of   the  lofs 

made  at  the  board. 30.  The  workman    employed  to  eftimate  a  lofs  or 

damage  fhall  be  obliged  to  build  or  repair  according  to  his  eftimate,  if  the 
member  fuftaining  the  lofs  or  damage  fhall  refufe  to  take  the  money  it  is  thus 

valued  at. 31.  If  any  one  lofs    requires  a  contribution  of   ten    fliillings 

per  cent,  on  brick,  and  double  on  timber  houfes  more  than  the  depofit  at  firft 
paid,  any  member  paying  the  fame  and  remitting  the  depofit,  may  furrender 

the  policy  and  be  difcharged  the  fociety. 32.  The  damage  to  painting  is 

to  be  made  good,  at  not  more   than    three  fhilhngs  a  yard ;    nor   is    more 
than  thirty  pounds  to  be  allowed  for  any  chimney-piece. 

2.     See    Equitable  Society,   Fire,   Society,    Union  Firc-Office,    Wejlminjler 
Fire-Office. 


..M 


HEMP. 


ETHOD  of  flating  2i particular  average  on  hemp  : — viz. 


Siippofe  the   amount  of  the  prime  cofl  and  charges,   at  Peterfburg,  per  invoice,   of   120 
bundles  of  clean  hemp,  weight  6,300  poods,  to  be     -------     rubles  10.000 

Making  at  44d.  per  ruble      --.--.--.--..-    /'i,833     6     8 
Sound  dues         -_---.----.._-..._  251410 

Premiumofinfurance  on  1,930!.  at  3j  guineas  percent.     -------      70   18     6 

The  whole  in'ereji  is     ---------_-----         ^1,930     o     o 

Suppofc  the  fame  had  arrivedyoM/;^  and  undamaged,    and   would   have   rendered  at  market 

(according  to  the  ufual  ejlimation  of  63  poods  to  a  ton)  100  tons  at  28I.     £"2,800     o     o 

Dedutl  difcount  for  ready  money,  25  per  cent.  ---------         7000 

2,730     o     o 
Dedud  for  re/w/c  hemp  .------------__-  15     00 

2,715     o     o 
Dedu6l  alfo  charges  of  freight,   cuftoms,   RulTia  dues,   lighterage,   landing, 

officers,  &c.       _--_--------......       gg^     o     o 

Net  proceed  if  undamaged       -»---------..     £"2,030     o     o 

But,  the  fame  having  arrived  in  part  damaged,  fold  as  follows, 

Sound  hemp,    5otonsat281.         ------------      £"1,400  o  o 

Much  damaged,  30  ditto,  at  15!.    -------------        450  o  o 

Little  damaged,  22  ditto,  at  25I.     -------------       5^0  o  o 

Weighed,  wet  and  dry,  102  tons      ------------    £'2.400     o     o 

Dcdua 


27.2'  H        E        M        P. 

brought  over,    £"2,400     o     o 
Dedu6l  difcount  2  i  per  cent,  for  ready  money     --------  60     «o 


Dcducl  alfo  freight  and  ordinary  charges  (as  before)     -     -     -     685     o 
Extra  charges,  in  confcquence  of  the  damage  and  pubhc  falc        20     o 


2:340 


705     o     o 
From  which  deduft  the  ahakmml  of  duties  on  the  damaged  hemp, 
fuppofed     -- .---        40     00 


665     o     o 


Net  produce  of  the  found  and  damaged     ----------      £^1,675     o     o 

The   lofs  is     -     -     -     - - 355     o     o 

On- iT  2,030     o     o 

Then,  if  2,030!.  iofe  355I. — 1,930!.  will  lofe  337!.  los. ;  which  is  17I.  9s.  8d.  per  cent,  to 
be  paid  by  the  infiirers.  ' 

2.  Remarks. — ^Very  few  averages  on  hemp  are  fairly  or  truly  adJLified- 
— There  is  generally  fome  refufe  among  a  cargo,  even  when  the  fea  has 
not  wadied  over  the  fhip  ;  therefore  an  exa6l  enquiry  is  abfolutely  neceflary 
to  know  whether  this  refufe  was  not  partly  bad  before  it  was  put  on  board; 
as  likewife,  whether  at  the  time  of  unloading  there  appeared  any  plain 
marks   of  the    fea   water    on    the  bundles,     before  they   were  opened  and 

mixed  together. In  proportion  to  the  real   damage   which  the  hemp  has 

fuffered,  there  mnft  be  an  increa/e  of  weight,  by  the  -water  which  it  has 
imbibed;  infomuch  that  I  have  often  feen  erroneous  adjuftments  made  and 
figned  by  underwriters  from  5  to  10  percent,  and  fometimes  more,  in  their 
wrong  ;  when,  upon  a  faii"  Hate  of  the  damage,  it  would  not  have  amounted 
to  5  per  cent. ;  in  which  cafe,  the  infurers  are  free  from  average  on  hemp,  by 

the  policy  : as  for  inllance  ;  an  cfinuitioii  of  63  poods   per  ton   (which   is 

feldom  juft)  is  made  from  the  Peterfburg  weight  of  a  quantity  of  hemp,  at 
50_ton.s ;  which,  if  landed  found,  are  ftated  to  produce  at  market,  net,  i,oooh 
But  the  v/hole  quantity  which  was  (hipped,  when  landed  wet  and  damaged., 
really  weighs  but  jt)  tons;  Avhich  produce  net  920I.  and  a  lofs  is  demanded 
of  Sol.  or  81.  per  cent,  on  ],oool. — Now,  in  truth,  there  was  an  increafe  of 
weight  by  loater,  fuppofc,  at  the  lead,  of  one  ton ;  the  original  weight,  if 
landed  dry  and  found,  could,  tlierefore,  have  been-but  48  tons  ;  which  would 
have  produced  only  g6ol.  and  the  real  lofs  thereupon  was  but  40I ;  which  is 
not  5  pef  cent,  (without  mentioning  the  deduftion  which  ought  to  be  made 
for  the  original  refufe)  and  confequcntly  no  average  ought  to  be  paid  by 
tile  irifurers. 

3 J     Sef,    Abatement ,   -Average,    Certificate,    Commodity,    Damage,    Duties, 
EflimMc^ Goods,  Intereft,  Market,  Peri/Jiable-Commodities,  Rifque. 

HERRING- 


[    273    ] 
HERRING-FISHERY. 

1.   Y}^  Stat.  11  Geo.  3.  c.  31.  f.  1. — For  the  encouragement  of  the  white 

J-'    herring-fiOiery,    a  bounty  of  thirty   fliilHngs   per  ton  (hall  be  paid 

annually,  to  the  owner  or  owners  of  all  decked  veffels  from  twenty  to  eighty 

tons  burthen,  for  feven  years,  from  the  22d  af  Oftober  1771,  and  to  the  end 

of  the  then  next  enfuing  feffion  of  parliament. S.  2.  For  every  veffel   or 

vefiels  proceeding  from  any  port  of  Great-Britain,  and  for  all  other  veflels 

which   fliall  take   their  departure   from   any  port  of  Scotland. S.  3.  The 

mafler  and  owners  of  fuch  bufs  or  veflel  (hall  take  out  their  licence  from  the 
coUeftor  and  comptroller  of  the  port  where  fuch  bufs  or  vefTel  was  fitted  out 

for  that  voyage. S.  4.  Every  fuch  bufs   or  velfel  fhall  be  decked,  built  in 

Great-Britain,  after  the  firft  day  of  January,  one  thoufand  feven  hundred  and 
fixty,  and  fliall  proceed  refpeftively,  manned,  furnifhed,  and  accoutred,  either 
to  Yarmouth,  in  the  county  of  Norfolk;  Whitehaven,  in  the  county  of 
Cumberland  ;  Leith,  in  the  county  of  Edinburgh  ;  Invernefs,  in  the  county 
of  Invernefs  ;  or  to  Braffey  Sound,  in  Shetland  ;  Campbletown,  or  Oban,  in 
Argylefliire  ;  or  Kirkwall,  in  Orkney ;  and  be  at  the  rendezvous  of  the  faid 
filhery  there  on  or  before  the  22d  day  of  June,  and  fliall  not  flioot  or  wet 
their  nets  before  the  twenty-fourth  day  of  the  faid  month  of  June,  and  fliall 
continue  fifliing  to  the  twelfth  day  of  October  ;  or  fliall  proceed  to  Yarmouth, 
in  die  county  of  Norfolk  ;  Whitehaven,  in  the  county  of  Cumberland  ;  Leith, 
in  the  county  of  Edinburgh  ;  Invernefs,  in  the  county  of  Invernefs  ;  or  to 
BrafTey  Sound,  in  Shetland  ;  Campbletown,  or  Oban,  in  Argylefliire  ;  or 
Kirkwall,  in  Orkney ;  and  to  be  at  the  rendezvous  of  the  faid  fiflieries  on  or 
before  the  firll  day  of  Oftober,  and  fliall  continue  fifliing  to  the  eleventh  day 
of  January  following,  unlefs  they  fliall  have   fooner  completed  their  loading 

of  fi(h. S.  6.  Every  fuch  veflel  of  twenty  tons,   fliall   have  on  board  not 

lefs  than  fix  men  ;  and  one  for  every  five  tons   which  flie  fliall  exceed  twenty 

tons. S.  7.  On  the  return  of  fuch  veflel   into  any  port  of  Great-Britain 

for  her  difcharge,  and  conforming  to  all  particulars  requii-ed  by  this  aft, 
payment  to  be  made  to  the  owner  or  owners,  or  to  his  or  their  afl^igns,  by  the 
receiver-general  of  the  cufloms  or  excife,  as  the   cafe   fliall  happen,  the  fum 

of  thirty  ihillings  per  ton. S.  9.  Provided  that  fuch   bufles  or  veflels  did 

really  and  bona  fide  take  their  departure  for  fuch  refpeftive  places  of 
rendezvous,  or  one  of  them,  at  leafl;  five  days  before  the  refpeftive  days 
herein  before  named  and  appointed  for  the  veflels  employed  in  the  faid 
fifl:ieries,  to  be  at  fuch  refpeftive  places  of  rendezvous,  although  they  fliould 

not  arrive  there. S.  11.  All  and  every  perfon  or  perfons  employed  in  the 

faid  fiflieries,  may  fifli  in  any  part  of  the  Britifli  feas,  and  fliall  have  and 
exercife  the  free  ufe  of  all  ports,  harbours,  fliores,  and  forelands  in  Great- 
Britain  or  the  iilands  belonging,  without  paying  any  foreland  or  other  dues. 

2.     See    Bounty,    Fijh,   Fijheries,  Greenland. 

3X  HOSTAGE, 


c 


[  274  ] 


HOSTAGE. 

I ASE. — This  was  an  aftion  brought  by  the  captain  of  a  French  privateer 
againft  the  captain  of  an  EngHfh  (hip,  called  the  Syren,  for  the 
ranfom  of  the  Syren,  which  had  been  taken  by  the  French  privateer : — it  was 
tried  before  Lord  Mansfield  at  Guildhall,  at  the  fittings  after  Eafl;er  Term  1765  : 
and  there  was  a  fpecial  cafe  ftated,  for  the  opinion  of  this  court : — the  material 
fubflance  of  this  cafe  is,  the  taking  of  this  (hip  by  the  French,  in  a  time  of  open 
war;  that  the  Englifh  captain  was  a  natural  born  fubjeft  of  Great-Britain  ;  and 
the  French  captain,  a  natural  born  fubjeft  of  France;  that  the  (hip  was  taken 
in  Auguft:  1762,  and  ranfomed,  and  a  ranfom  bill  given  for  300  piflioles  (which 
are  equivalent  to  236I.)  and  that  his  mate  Jofeph  Bell,  who  died  in  prifon,  was 

given  as  a  hoftage. Mr.  Chambers,  for  the  plaintiff:  this  is  not  an  illegal 

contra6l  with  an  enemy;  but  a  tranfaftion  arifing  from  an  aft  of  hofl:ility:  a 
captive  may  redeem  his  life  by  a  ranfom ;  and  money  aftually  paid  down,  or  a 
promife  of  money  to  be  paid  in  future,  are  equally  allowable :  it  mollifies  the 
rigour  of  conquefl: :  it  is  a  cafe  of  necelTity :  the  viftor  might,  otherwife,  even  kill 
his  captive :  the  contract  did  not  become  extinft  by  the  death  of  the  hoflage :  the 
giving  of  a  hofi:age  is  a  collateral  contraft  :  a  hoftage  is  not  an  equivalent,  but  a 
collateral  fecurity  :  it  is  only  ftrengthening  the  obligation  by  giving  a  pledge ; 
but  giving  a  pledge  does  not  difcharge  the  debt. — Yelv.  178.  Sir  Jo.  Ratcliffe 
V.  Davis. — 2  Strange  919.     The  South-Sea  Company  v.  Duncovibe. — 2  Salk. 

522.   Digcjl,  lib.  20.  title  5.    lex.  9 Mr.  Dunning  for  the  defendant :   this 

is  an  aftion  of  the  firft  impreffion ;    no  fuch  aftion  has  ever  been  brought, 

though  the  cafe  mull  be  frequent;  nor  does  a  reciprocal  aftion  lie  in  other 

nations :    no  fuch  contraft  as  this  is,    can,  of  itfelf,   fupport  an  aftion :    it  is 

void,   from  the  nature  of  the  contrafting  parties  :    the  plaintiff  is  under  an 

incapacity  of  either  contrafting,    or  fuing ;    not  indeed  as  an  alien  generally, 

but  as  an  alien  enemy :    if  he  fued  merely  as  an  alien,   it  fhould  have  been 

taken  in  time,    and  pleaded  in  abatement;    but  this  plaintiff  was  an  alien 

enemy,  therefore  no  fuit  could  have  been  maintained  between  the   parties,  at 

the  time  of  making  the  contraft;    nor  could  any  fuit  have  been  maintained, 

between  the  parties,  at  the  time  of  the  breach  of  the  contraft  ;  and  a  perfonal 

aftion  once  fufpended  is  gone  for  ever:   here  is  a  fundamental  radical  defeft ; 

no  aftion  could  accrue  upon  a  contraft  made  with  an  alien  enemy,  in  time  of 

aftual  open  war :    this  contraft  being  fo  fecured  by  a  hoftage,  the  ran/om-bill 

is  not  an  independant  fubftantive  agreement ;    but  relative  to  the  hoftage : 

the  hoftage  himfelf  is  not  bound  to  pay  the  ranfom,    although  he  has  figned 

the  paper;   it  is  the  captain  only,  who  obliges  himfelf  and  his  owners:  this 

oblig-ation.   if  not  obtained  bv  what  is  ftriftly  called  durcffe,   was  at  leaft  nor. 

voluntarily  entered  into;    if  the  captain  could  thus  bind  himfelf,   his  fliip  and 

owift€i?s,  -what  need  could  there  be  of  hoftage  ?    the  hoftage  therefore  is  a 

fecurity,  and  the  principal,  if  not  the  only  fecurity:   he  faid,  it  aftonifhed  him, 

that  all  foreign  writers    (except  Grotius  and  Puffendorff)  are  filent  upon  this 

fubjeft ; 


HOSTILITY.  275 

fubjeft  ;  and  they  do  not  fay  much  about  it :  but  Molloy,  b.  1.  c.  8.  f.  7.  fays, 
"  that  if  hoftages  are  taken,  he  that  gives  them  is  freed  from  his  faith ;  for  that 
in  receiving  hoftages,  he  that  receives  them  hath  rehnquifhed  from  the 
affurance  which  he  had  in  the  faith  of  him  that  gave  them  :"  an  aftionupon  a 
ranfom-bill  was  never  attempted  even  in  the  court  of  admiralty;  nor  will  it  lie 
in  France :  but  he  admitted,  that  aclions  had  been  brought  in  the  admiralty, 
by  the  hoftage  againft  the  owners  who  refufed  to  ranfom  him  ;  and  he  thought 
that  fuch  an  aftion  would  lie  even  in  this  court ;    but  that  would  not  be 

material    in   the    prefent   cafe. Reply:  the  hoftage   is  not  the   principal 

fecurity ;  but  collateral,  and  not  the  fubjefcl  matter  of  the  contraft :  for  which 
he  cited  Zouch,  Grotius,  and  other  authorities :  but,  if  the  hoftage  were  the 
principal  fecurity,  yet  his  death  does  not  difcharge  the  debt :  Molloy  h.  1. 
c.  8.    relates  to  public  hoftages,    upon  leagues  and  treaties  :    bcfides,  other 

opinions  are  againft  him. Ulterius  concilium. Mr.  Blackftone,  who  was 

to  have  argued  for  the  defendant,  upon  a  fecond  argument,  now  faid,  he  had 
made  enquiries  abroad,  and  had  anfwers  from  feveral  very  eminent  lawyers  of 
France  and  Holland,  "  that  fuch  an  aftion  had  been  allowed,  and  upon 
principles  that  could  not  be  difputed;"  therefore  he  did  not  chufe  to  argue  it: 
for  the  only  objection  which  feemed  to  weigh  upon  the  former  argument,  was, 

*'  that  fuch  an  aftion  would  not  lie  in  the  other  countries  of  Europe." 

Lord  Mansfield  faid,  the  court  were  all  of  the  fame  opinion. N.  B.  There 

were  a  few  other  atlions  of  the  fame  kind  depending  ;  but  upon  this  judgment 
(which  gave  univerfal  fatisfaction)  the  ranfoms  were  paid. — Per  curiam, 
unanimoully  ;  let  there  be  judgment  for  the  plaintiff".  (See  Puffendorff,  lib.  8. 
c.  7.  feft.  14.  and  Grotius,  lib.  3.  c.  13.  De  fide  privata  in  bello.) — 3  Burr. 
1734.   Mich.  6  Geo.  3. — Ricordv.  Bettenham. 

2.     See  Enemy,  Ranfom. 

HOSTILITY. 

I.  T  T  fliall  not  be  permitted  to  the  fubjefts  of  the  king  of  Great- 
-■-  Britain,  and  the  inhabitants  of  the  kingdoms  and  countries  under  his 
obedience,  or  to  the  inhabitants  and  fubjefts  of  the  United-Provinces, 
to  do  or  offer  any  hoftility  or  violence  to  each  other,  either  by  land  or  by 
fea,  upon  any  pretence  or  colour  whatfoever ;  and  confequently  it  ftiall  not 
be  lawful  for  the  faid  fubjefts  or  inhabitants  to  get  commiffions  or  letters  of 
reprifal  from  any  prince  or  ftate  with  whom  either  of  the  confederates  is  at 
difference  or  in  open  war,  and  much  lefs  by  virtue  of  thofe  letters  to  moleft 
or  damnify  the  fubje^ls  of  either  party.  Neither  fliall  it  be  lawful  for  any 
foreign  private  men  of  war,  who  are  not  fubjeft  to  one  or  the  other  party, 
having  covimijjions  from  any  other  prince  or  ftate,  to  equip  their  fhips  in  the 
harbours  of  either  of  the  aforefaid  parties,  or  to  fell  or  ranfom  their  prizes, 
or  any  other  way  to  truck,  as  well  the  (hips  and  goods,  as  any  other  lading 
whatfoever.  And  it  fliali  not  be  lawful  for  them  to  buy  any  vi6luals,  but 
what  (hall  be  neceflary  to  bring  them  to  the  next  port  of  that  prince,  from 

whom 


276  II      O      S      T      1      L      1      T      Y. 

whom  they  obtained  their  fald  commiflions.  And  if  perchance  any  of  ilie 
iubjecls  of  the  faid  king  of  Great-Britain,  or  of  the  laid  States-General, 
{hail  buy,  or  get  to  themfelves  by  truck,  or  any  other  way,  fuch  fliips  or 
goods  wliich  have  been  taken  from  the  fubjeftsofthe  one  or  the  other  party, 
m  fuch  cafe  the  faid  fubjects  fliall  be  bound  to  reftore  the  faid  fliip  or  goods 
to  the  proprietor.-;  without  any  delay,  and  without  any  compenfiition  or 
reimburfement  of  money  paid  or  promiled  for  the  fame  ;  provided  that  they 
make  it  appear  before  the  council  of  the  faid  king  of  Great-Britain,  or 
before    the  States-General,  that  they   are   the  right  owners  or  proprietors  of 

them. Juflice    fhall  be    rendered,    and  fatisfaclion  given   to   all    perfons 

concerned,  by  all  fuch  who  have  committed  any  thing  contrary  to  this  treaty, 
by  land  or  fea,  or  other  waters,  in  any  part  of  Europe,  or  any  places 
within  the  Streights,  or  in  America,  or  in  any  lands,  iflands,  feas,  creeks, 
bavs,  rivers,  or  in  any  places  on  this  fide  the  Cape  of  Good  Hope,  within 
twelve  months'  fpace  after  juflice  (hall  be  demanded  ;  and  in  all  places 
whatfoever  on  the  other  fide  of  the  Cape  (as  hath  been  above  faid)  within 
eighteen  months  next  enfuing  after  demand  of  juflice  fliall  be  made  in  manner 
aforefaid.  But  in  cafe  the  offenders  againft  this  do  not  appear  and  fubmit 
themfelves  to  judgment,  and  give  fatisfaflion  within  the  refpecfive  times 
above  exprefl'ed,  proportionably  to  the  diflance  of  the  places,  they  fliall  be 
declared  enemies  of  both  parties,  and  their  eftates,  goods,  and  revenues 
whatfoever,  Ihall  be  confifcated  for  the  due  and  full  fatisfaftion  of  the  injuries 
and  wrongs  by  them  offered ;  and  their  perfons  alfo,  when  they  come  within 
the  dominions  of  cither  party,  fhall  be  liable  unto  fuch  puniflnments,  as  every 
one  flaalldcferve  for  his  refpeCtive  offences. — Treaty  xoith  Holland,    1667. 

2.     The  fubjefts  and  inhabitants  of  the  kingdoms,  provinces,  and  dominions, 

of  each  of  their  royal  majefties,  fliall  exercife  no  afts  of  hoftility  and  violence 

againft  each   other,  either  by  fea  or  land,  or  in    rivers,    ftreams,  ports,   or 

havens,  under  any  colour  or  pretence    whatfoever  ;    fo  that  the  fubjecls  of 

eitlier  party  fliall  receive  no  patent,  commijfion,  or  inflruftion,  for  arming  and 

a61ing  at  fea  as    privateers,   nor  letters  of  reprifal,  as  they  are  called,   from 

any  princes  or  ftates  which  are   enemies  to  one  fide  or  the  other  ;    nor  by 

virtue  or  under  colour  of  fuch  patents,    commiffions,  or  reprifals,  fliall  they 

difturb,  infefl,   or  any  way  prejudice  or  damage  the  aforefaid  fubjetls  and 

inhabitants  of  the    queen  of  Great-Britain,  or   of  the  moft  chriftian  king ; 

neither  fiiall  diey  arm  fliips  in  fuch  manner  as  is  above  faid,  or  go  out  to  fea 

therewith.     To  which  end,  as  often  as  it  is    required  by   either  fide ;    ftrift 

and    exprefs   prohibition   fhall  be   renewed  and  publiflied  in  all   the  regions, 

dominions,  and  territories,  of  each    party  wherefoever,  that  no  one  fliall  in 

any    wife    ufe    fuch  commiffions    or   letters    of  reprifal,  under   the    fevereft 

punifliment   that  can  be  inflittcd  on  the  tranfgreflbrs,  befides  reftitution  and 

full  fatisfaclion  to  be   given -to  thofe  to  whom  they  have  done  any  damage; 

neither  fliali  any  letters  of  reprifal   be  hereafter  granted  on  either  fide  by  the 

faid  confederates,  to    the    detriment  or  difadvantage    of  the  fubjefts  of  the 

otheiv  except  in   fuch  cafe   only  as  juflice  is  denied  or   delayed;    to  which 

;/:  denial 


HYPOTHECATION, 


')• 


•I  I 


denial  or  delay  credit  fliall  not  be  given,  unlefs  the  petition  of  the  perfon, 
who  defires  the  faid  letters  of  reprifal,  be  communicated  to  the  minifter 
refiding  there  on  the  part  of  the  prince  againft  whofe  fubjefts  they  are  to  be 
granted,  that  within  the  fpace  of  four  months,  or  fooner  if  pofhble,  he  may 
evince  the  contrary,  or  procure  the  performance  of  what  is  due  to  jullice. 
— Treaty  with  France,  1713. 

3.     See    Capture,    CommiJJion    of  Marque,    Enemy,    Letter    of  Marque, 
Neutral  Ship  or  Property,   Privateer,  Prize,  Seizure,   Waf. 


HYPOTHECATION. 

1.  /^ASE. — Adjudged,  That  where  a  mafter  pawns  a  fliip  at  fea,  the 
^-^  admiralty  hath  a  jurifdi6lion  ;  and  note,  he  may  pawn  to  relieve  the 
fhip  in  extremity,  for  he  being  conftituted  mailer  of  the  fiiip,  hath  implicitly 
a  power  to  preferve  it  in  cafes  of  danger  ;  but  he  cannot  pawn  it  for  his  own 
debt,  becaufe  he  has  neither  a  property  or  power  for  that  purpofe  ;  and  if 
the  admiralty  fliould  confirm  an  hypothecation  of  that  nature,  a  prohibition 
Ihall  be  granted. — 3  Salk.  23,  24.  Hil.  13.  Will.  3. — King  v.  Perry. 

2.  Case. — Prohibition  was  granted  to  flay  a  fuit  in  the  admiralty,  againft 
a  Ibip  hypothecated  by  the  mailer  of  it  for  an  anchor,  cable,  &c. :  firft,  becaufe 
it  does  not  appear  in  this  cafe,  that  this  fhip  was  in  voyage  whzn  fhe  became  in 
dillrefs  for  want  of  an  anchor,  &c.  and  at  the  time  of  the  contrad  :  fecondly, 
there  was  no  hypothecation  here,  as  there  was  in  the  cafe  cited ;  and  where 
there  is  an  hypothecation,  if  the  admiralty  fliould  be  prohibited  to  proceed, 
the  party  would  be  without  remedy ;  for  no  fuit  can  be  againfl  the  fliip  at 
common  law  upon  it :  now  it  is  true,  that  by  the  maritime  law  every 
contract  with  the  mafter  of  a  fliip  implies  an  hypothecation  ;  but  it  is  other- 
wife  by  the  law  of  England  :  therefore  this  being  a  contraft  made  with  the 
mafter  upon  the  Land,  it  is  the  common  cafe  ;  the  admiralty  cannot  have 
cognizance  of  fuch  a  fuit,  and  therefore  a  prohibition  was  granted. — 
Raym.  805.    Mich.  1.  Ann. — Jujlin  v.  Ballam. 

3.  Case. — Holt,  C.  J.  faid,  the  cafe  of  Coftart  and  Lawdftey  was  the 
fame  as  this  ;  and  there,  on  a  demurrer  to  a  declaration  in  a  prohibition,  a 
confultation  was  awarded  by  the  whole  court.  When  an  hypothecation  is 
made  either  for  money  to  buy  neceflaries,  or  for  neceffaries  for  the  fliip  in 
a  voyage,  the  court  of  admiralty  have  a  jurifditlion,  for  the  party  has  no 
other  remedv  ;  we  cannot  give  him  any  remedy  againft  the  fliip,  and  if  the 
fuit  there  fliould  not  be  allowed,  the  mafter  will  have  no  credit  to  take  up 
neceflaries  for  the  ufe  of  the  fliip.  Powel,  Juftice,  of  the  fame  opinion  :  the 
original  matter  is  conufable  in  that  court,  and  the  hypothecation  upon  land 
is  of  neceflity  ;  for  it  muft  be  done  in  port,  and  cannot  be  done  upon  the 
fea,   and  the  party  has  no  remedy   but  by  the  maritime  law. Holt,  C.  J. 

3  Y  faid. 


278  HYPOTHECATION. 

faid,  no  mafter  of  a  fhip  can  have  credit  abroad  but  upon  fecuriiy  by- 
hypothecation  ;  and  (hall  we  hinder  the  court  of  admiralty  from  giving 
remedy,  when  we  can  give  none  ourfelves  ?  it  will  be  the  greatefl  prejudice 
to  trade  that  can  be,  to  grant  a  prohibition  in  this  cafe  ;  indeed  if  a  (hip  be 
hypothecated  here  in  Enghmd  before  the  voyage  begin,  that  is  not  a  matter 
within  the  jurifdiftion  of  the  court  of  admiralty,  for  it  is  a  contra6t  made 
here,  and  the  owners   can   give   fecurity  to   perform   the    contraft :    which 

Powel  agreed. Holt,   C.   J.  faid,    there    is  no    difference,    whether   the 

hypothecation  be  alleged  in  the  libel  to  be  made  in  port,  or  appears  fo  to  be 
by  the  fuggeflion,  as  it  was  in  the  cafe  of  Coffart  and  Lawdfley  :  at  law  that 
is  not  fo,  for  the  maflerhas  no  authority  to  fell  any  part  of  the  fhip,  and  his 
fale  transfers  no  property,  but  he  may  hypothecate :  and  (ince  the  proceed- 
ings in  the  court  of  admiralty  are  againft  the  owners,  as  well  as  againll  the 
fliip,  let  a  prohibition  go  quoad  the  proceeding  againft  the  owners,  and  let 
them  go  on  to  condemn  the  ftiip  :  to  which  the  reft  of  the  judges  agreed. — 
Raym.  982.  Trin.  2.  Ann. — •John/on  v.  Shippcn. 

t 

4.  Case. — If  at  fea,  where  no  treaty  or  contraft  can  be  made  with  the 
owner,  the  mafter  employs  any  perfon  to  do  work  on  the  ftiip,  or  to  new 
rig  or  repair  the  fame  ;  this,  for  neceflity  and  encouragement  of  trade,  is  a 
lien  upon  the  ftiip  ;  and  in  fuch  cafe  the  mafter,  by  the  maritime  law,  is  allowed 
to  hypothecate  the  ftiip. — 2  Peere  Williams,  367.  at  the  Rolls,  Trin.  1726. 
— Watkbifon  v.  Barnadijlon. 

5.  Case. — The  mafter  may  hypothecate  either  Ihip,  or  goods;  for  he  is 
intrufted  with  both,  and  reprefents  the  traders,  as  well  as  the  owners  of  the 
fliip. — 1  5a/i.  34.  Mich.  1.  Ann. — JuJlinv.Ballam. 

6.  See  Bottomry,  Mafter. 


<^fH 


ILLEGALITY. 


I, 


ILLEGALITY. 

1.  ^N  cafe  a  fliip  be  attacked,  or  an  emhargo  laid  on  it  by  any  king,  prince, 
i  or  flate,  the  infurer  fhall  be  refponfible  for  the  extraordinary  expences 
and  flay  occafioned  thereby :  but  where  a  fhip  is  arrefted  and 
adjudged  to  be  conjifcated  on  account  of  a  contravention  to  the  laws  and 
ufages  of  the  place,  concealment,  or  a  falfe  report  of  the  fliip  at  the  cuftom- 
houfe,  prohibited  or  contraband  goods,  or  from  the  mailer's  having  put  into 
an  interdicled  harbour ;  the  infurer  in  thefe  cafes  is  clear  of  all  damages. — 
Ordin.  of  Stockh. 

2.     See   Prelim.  Di/c.    79.    Capture,   Condemnation,  Confifcation,  Contra- 
band, Document,  Eaft-India,  Embargo,   Mi/take,   Prohibited  Goods,  Rejiraint. 


INDEMNITY. 

See  Prelim.  Difc.  8.   Abandonment,   Average,   Commodity,    Double- In/urance, 
Infurer,   Lofs,   Market,   Policy,   Recapture,    Wager. 

INSOLVENCY. 

See  Bankrupt,  Broker,  Infurer,  Reinfurance. 

INSUFFICIENCY. 

\.  TNSURERS  are  not  refponfible  for  any  lofs,  or  damage  that  may 
-^  happen  through  the  infufficient,  defeftive,  or  perifliable  quality  of  the 
thing  infured  ;  for,  by  the  nature  of  the  contraft  of  infurance,  every  thing  is 
underllood  and  tacitly  warranted  to  be  in  the  good  flate  and  condition  which 
it  ought  to  be  : — fince  whatfoever  happens  from  the  contrary,  and  without 
any  external  misfortune,  cannot  be  deemed  an  unavoidable  accident,   arifmg 

from  the  perils  of  the  fea,  or  the  voyage. — Guidon,  art.  8.  c.  5. As  if  a 

fhip 


o8o  INSUFFICIENCY. 

fhip  peiiflies  or  is  become  innavigable  through  age,  crazinefs,  or  decay,  or 
becaufe  fomc  material  parts  of  her  are  worn  out  and  rotten ;  and  that, 
notwithftanding  fhe  may  have  met  with  flormy  weather,  or  fea,  capable  of 
hurting  a  better  fhip. — 2  Valiiis  Comm.  14,  81. 

2.  Case. — The  Tyger,  Capt.  Harrifon,  being  bound  from  London  to 
Gibralter,  the  plaintiff  got  an  infurancc  made  on  her,  "  interefl;  or  no  intereft, 
free  of  average,  and  without  benefit  of  falvage  to  the  infurers ;"  and  at  the  foot 
.of  the  policy  there  was  a  warranty,  that  the  fhip  fliould  depart  widi  convoy 
from  fome  port  in  the  channel  : — tlie  faid  ftiip  proceeded  on  her  voyage  as 
far  as  the  Downs,  and  failed  from  thence  under  convoy,  as  warranted,  but 
foon  after  her  departure  fhe  received  a  very-  confiderable  damage,  which 
obliged  her  to  return  to  Dover-Pier  to  refit ;  and  after  the  neceflary  repairs 
were  finiflied  (lie  failed  again  in  profecution  of  her  voyage,  and  for  her 
fecurity  therein,  to  join  the  convoy  at  Spithead  :  but  having  got  as  far  as 
the  Ifle  of  Wight,  fhe  proved  fo  leaky  as  obliged  her  to  a  fecond  return,  and 
fhe  once  more  arrived  at  Dover  to  fearch  for  leaks : — her  owners,  on  this, 
thought  it  advifable  to  have  her  furveyed  by  men  of  flvill  and  judgment ;  and 
therefore  two  fhip-carpenters,  and  two  mailers  of  (hips,  having  examined  her, 
declared  that  they  had  furveyed  both  fides  from  flem  to  ftern  above  the 
wales,  and  the  tranfom;  after  the  planks  were  ripped  off,  and  "  found  the 
timbers  to  be  very  rotten,  and  in  fo  bad  a  condition,  that  except  all  her  upper 
works  were  pulled  down  and  new  built,  they  did  not  judge  her  in  a  fit 
condition  to  proceed  on  her  intended  voyage  ;  and  that  if  Ihe  was  fo  repaired, 
the  charges  would  come  to  more  than  flie  would  be  worth,  with  all  belonging 

to  her." The   plaintiff  infifts,   that  fhe  was  a  very  good  fiiip  when  (he  fet 

out  on  her  voyage,  and  (lie  was  only  rendered  otherwife  by  the  bad  weather 

(he  had  met  with,  which  at  laff  not  only  rendered  her  unfit  for  her  voyage, 

but  occafioned  her  proving  a  total  lofs  to  her  owners ;  that  (lie  would  have 

weathered  the  ftorm  in  all  probability  unhurt,  had  not  the   Swift  privateer 

drove  foul  of  her  :  that  when  her  firft  hurt  was  repaired,  the  builder  fuppofed 

her  (Ironger  than  before  the  fform ;    though  when   (he  was   laid  open,   her 

tranfom  (as  before  mentioned)  and  moft  of  her  long  timbers  were  found 

rotten ;  fo  that  notwithftanding  it  is  poffible   (he   might  have   performed   her 

voyage,  yet  had  her  defefts  been  known,  nobody  would  have  cared  to  venture 

in  her: — Mr.  Burton,  who  fitted  her  out  in  the  Thames,  declared  flie  was  in 

very  good  condition,  and  fit  for  any  voyage  ;  though  he  did  not  examine  her 

timbers,  but  only  calked  her,  and  mended  her  outfide  and  floor  timbers ; 

but  it  is  natural  to  fuppofe  that  if  her  timbers  were  found  in  Oclober  (when 

thefe  repairs  were  done)  they  could  not  have  been  rotten  in  January,  when 

fhe  received  her  damage  : — and  the  defendant  grounds  his   reafons   for  not 

paying  the  faid  infurance,   firft,  on  that  part  of  the  policy's  contents  which 

aiferts  the   fliip  to  be    "  tight,   ftaunch,    and    ftrong,"    and,   barring    future 

accidents,  able  to  go  through  the  \  oyage ;    whereas  he  fuppofes    this  veffel 

not  to  have  been  fo,  as  he  thinks  it  clear  from  the   preceding  afhdavit,  and 

from  the  verbal  evidence  of  one  of  the  furveyors  ;  to  which  he  adds,  in  order 

to 


INSUFFICIENCY.  281 

to  make  the  proof  of  her  defers  the  flronger,  that  on  her  firfl  fettlng  out  [he 
belonged  to  two  Jews,  who  on  her  return  to  Dover-Pier  the  firft  time,  fold 
her  to  Mr.  Richard  Glover,  a  confiderable  merchant  of  this  city,  who  ordered 
her  to  be  repaired,  and  aftually  laid  out  upon  her  150I.  which,  as  it  appears, 
was  in  a  manner  thrown  away,  as  on  her  fecond  return  fhe  was  condemned, 
broke  up,  and  fold  in  parcels ;  and  her  incapacity  to  proceed  on  her  voyage 
having  been  fo  apparent,  from  the  foregoing  furvey,  as  to  induce  Mr.  Glovei 
to  defire  the  Ihippers  to  take  their  goods  out,  and  though  he  had  got  300I. 
infured  on  her,  he  feemed  fo  fenfible  of  the  deceitful  bargain  with  the  Jews, 
in  felling  him  an  old  rotten  (hip,  that  he  never  demanded  one  farthing  of  the 
faid  infurance  from  the  underwriters  : — that  the  plaintiff  had  no  interefl  in 
the  veffel,  and  therefore  this  was  only  a  gaming  policy  ;  and  as  it  is  a  general 
rule  in  all  cafes  of  interefl  or  no  intereft,  that  there  mud  be  a  total  lofs  before 
the  infurer  can  recover ;  and  the  infurer  by  this  policy,  being  free  from 
average,  or  a  partial  lofs  ;  it  feems  to  be  the  principal  quellion  in  this  cafe, 
"  Whether  the  (hip  brought  into  Dover-Pier,  there  condemned  as  rotten, 
divided  into  lots  and  fold,  will  be  confidcred  in  the  agreement  or  zvnger,  as  a 
total  lofs  ?"  and  to  enforce  the  contrary,  the  defendant  remarks,  that  there 
was  no  lofs  at  fea,  no  capture,  but  a  deliberate  aft  done  by  the  owner,  upon 
a  regular  furvey,  which  occafioned  her  being  broke  up,  not  by  reafon  of  the 
damage  (lie  had  received,  but  from  the  rottennefs  of  the  principal  parts  of 
her  works.  "V^erdift  for  the  plaintiff. — Lex  Merc,  red.  281.  At  Guildhall, 
Trin.  1747- — Arnold  v.  Godin. 

3.  Case — MefTrs.  John  and  Thomas  Mills,  in  the  year  1757,  purchafed 
a  French  built  (hip,  which  they  called  the  Mills  Frigat  (commanded  by 
Capt.  Finch)  and  employed  her  in  the  Leeward-Ifland  trade  :  the  firll  cofl; 
of  this  fhip  was  gool. :  befides  this  fum,  her  repairs  and  outfit  amounted  to 
1,6491.  for  the  firfl  voyage:  (he  was  conllantly  decked  and  repaired  in  the 
river  Thames  in  the  beft  manner  for  every  voyage,  leaving  it  always  to  the 
captain  and  fliip-builder,  to  do  everything  which  they  thought  proper:  on  the 
arrival  of  the  Mills  Frigat,  at  St.  Kitt's,  in  the  year  1764,  MefTrs.  John  and 
Thomas  Mills,  received  a  letter  from  the  captain,  dated  St.  Chriflophers,  April 
the  23d,  1764,  informing  them  that  "  he  arrived  at  Nevis  after  a  mofl  difmal 
"  palfagc,  and  violent  gales  of  wind,  fo  that  the  fhip  flrained  fo  much,  by  the 
"  preffure  of  fail  they  were  obliged  to  carry  on  her  in  that  great  fea,  that  it 
"  was  with  the  utmofl  difficulty  they  could  keep  her  free  ;  that  fhe  had  fo 
"  loofencd  that  they  could  not  carry  fail  on  the  wind,  and  feeing  no  probability 
"  of  the  winds  fhifting,  or  abating  enough  to  give  a  chance  of  beating  up,  bore 
"  away  for  Nevis,  in  a  weak,  leaky,  and  diflreffed  condition." — The  broker,  Mr. 
Towgood,  fhewed  the  whole  of  this  letter  to  George  Hayley,  Efq;  wl^o  had 
before  underwrote  this  fhip  to  him  feveral  times,  particularly  400I.  the  lafl 
outward-bound  voyage,  alfo  to  the  other  underwriters.  Mr.  Hayley,  notwith- 
ftanding  he  expreffed  fufpicions  arifing  from  it,  began  to  write  300L  at  the 
common  premium  -.  but  the  broker  telling  him,  that,  confidering  the  captain's 
letter,  he  was  too  bold,  he  altered  it  to  200I. :    in  this  cafe  it  is  evident  that 

3  Z  Mr, 


282  INSUFFICIENCY. 

Mr.  H-Ji-yley  knezu  every  circumllance  relating  to  this  fliip,  which  was  or  could 
pollibly  be  known  to  Medrs.  Mills :  he  knew  alfo  that  (he  was  a  Frejich-built 
Ihip,  and  confequently  liable  to  all  the  accidents,  to  which  (hips  of  that 
conftruftion  are  peculiarly  fubjeft:  the  fliip  was  warranted  to  fail  and  did  fail 
the  26th  of  July;  on  the  27th  in  the  evening  (he  fprung  a  leak,  in  fair  weather, 
and  being  in  danger  of  foundering,  returned  to  St.  Kitt's  and  was  condemned: 
the  infured  thinking  themfelves  honellly  and  fairly  entitled  to  the  fums  under- 
wrote, made  a  demand  on  the  undenvriters  for  the  lofs  of  50I.  19s.  per  cent, 
on  the  (hip,  and  a  total  lofs  on  freight:  Mr.  Hayley  and  the  other 
underwriters  plead  the  infujicic ncy  o^  ihc[\\\\),  fuice  proved  only  by  the  event, 
as  a  reafon  for  not  fulfilling  a  contraft  entered  into  before  this  infufficiency 

either  was  or  could  be  fufpe(5i:ed. There  have  been  two  trials  on  tliis  cafe  at 

Guildhall,  in  both  it  was  admitted,  that  after  the  Mills  Frigat  arrived  at  Nevis 
(fome  people  obje61:ing  to  fliip  their  fugars  in  her,  on  account  of  the  damage 
referred   to  in  the   above-mentioned  letter) ;    the   captain,    to  remove  this 
fufpicion,  if  afalfeone,  or  to  prevent  further  ill  confequences,  fhould  it  prove 
well  grounded,  requefled  all  the  captains  then  loading  in  the  ifland  to  furvey 
her;    who  reported   "that  the   fhip's  making  more  water  than  ufual  on  her 
voyage  from  London  to  Nevis,  was  occafioned  by  fome  neglefts  in  calking ; 
that  flie  otherwife  appears  to  be  flrong  and  found,   and  when  calked,    fully 
fuihcient  to  carry  a  cargo  of  fugar  to  London  :" — the  fliip  was  calked  agreeable 
to  thefe  direftions.     In  the  evening  of  the  day  after  his  failing  he  found  the 
fhip  had  fprung  a  dangerous  leak,   and  was  obliged  to  put  back :   on  her  being 
lightened  it  appeared  that  fhe  had  flarted  a  plank,    and  the  plank  thus  flarted, 
difcovered   that  which  could  never  have  been  known  previous  to   fuch  an 
accident,  viz.  that  the  iron  bolts  by  which  the  planks  xvcre  fa/tencd  to  the  timbers, 
iverc  entirely  decayed  and  eat  out  by  rujl ;  and  feveral  of  her  planks  flarted, 
one  of  them  more  than  an  inch  from  the  timbers  all  the  way  fore  and  aft ; 
and  in  the  report  made  by  the  furveyors  appointed  by  the  judge  of  the  vice 
admiralty-court  in  Nevis,   they  declared   "'  that  the  fhip  is  in  a  bad  condition, 
and  entirely  unfit  to  proceed  on  her  voyage  without  being  firfl:  thoroughly 
repaired,   and  that  it  is  their  opinion  that  the  fhip  cannot  be   thoroughly 
repaired  at  that  place,   without  more  expence  than  the  value  of  the  fhip  and 
freight  will  amount  to ;"  and  therefore  condemned  her,  though  her  timbers  and 
planks  were  perfe6lly  found. — It  was  a  particular  part  of  the  evidence  admitted 
in  court,   that  no  materials  could,   at  that  time,   be  purchafed  in  the  ifland 
proper    to    repair  her,     and   that    there   was    no    dock  in   which   the    fhip 
could   be    put,    even  if   the    materials   could   have   been   procured ;    and, 
further,    that  the  hurricane  feafon  was  begun,    and  the  fliip  would  every  day 
be  in  danger  of  being  wrecked,    if  the  captain  had  imprudently  refolved  to 
remairt^  there  till  materials  for  repairing  her  could  have  been  obtained.     On 
accoipikt  therefore  of  this  local  incapacity  of  being  repaired  they  condemned 
her;    and  the  jury  on  the  firjl  trial  determined,    that   if   a  merchant  of 
reputation  and  charafter  order  every  proper  repair  to  be  made  on  his  flap, 
and  if  any  new  circumftance  occur,   honeflly  tell  the  underwriter  of  it ;    the 
allured  could  not  be  prejudiced  hi  his  adurance  by  any  after  difcovery  of 

infufficiency 


INSUFFICIENCY.  283 

infufficiency  which  could  not  before  by  any  ways  or  means  w^hatever  be  either 

known  or   fufpefted. On   the  fecond  trial,    though   the   evidences   and 

circumftances  were  exaftly  the  fame  as  in  the  firft,   and  no  new  matter  arofe ; 
yet  a  verdift  was  given  for  the  defendant : — by  this  determination  the  affureds 
complained  that  the  owners  of  fhips  are  in  a  fituation  infinitely  more  dangerous 
than  they  even  till  now  apprehended ;    for  they  are  fuppofed  to  warrant  that 
to  the  underwriters,   which  it  is  abfolutely  impolhble  for  them  to  know  or 
warrant,  viz.    that  the  fliip  is   really  and  aEually,   not  merely  in  their  beft 
judgment    (formed  on  the  ftrifteft  examination)    but   in   faft,    capable  of 
performing  her  voyage : — it  was  infilled  on  by  the  counfel,  on  the  part  of  the 
defendant,  that  the  fhip  is  the  fubflratum,  or  ground  of  the  voyage  ;  and  it  is 
a  datum,    that  the  fhip  is  able  to  perform  the  voyage,    unlefs  fome  external 
accident  fhould   happen  :    that  a  fhip  incapable  is  no  fhip  at  all :    that  the 
owner's  knowledge,   or  ignorance  of  thefe  circumftances,   does  not  alter  the 
cafe  ;    that  if  fhe  fhould  eventually  appear  incapable  from  fome  latent  internal 
defe6l  of  performing  this  voyage,  fhe  is  on  this  account  incapable  of  being  the 
fubjeft  of  infurance,  either  on  the  body  of  the  fliip,  or  on  goods:   it  is  alfoto 
be  underflood  that  the  freighter  who  infures  his  goods  on  any  bottom,   is 
equally  refponfible  with  the  owner,  that  there  is  no  internal  defeft  in  the  fliip; 
for  if  any  after  event  fhould,  as  in  the  prefent  cafe,  difcover  fuch  defeft  (though 
hitherto  unperceived)  the  goods  thus  infured  by  the  freighter,  are  not  to  be  paid 
for  by  the  underwriter,  becaufe  the  fliip  appears,  after  the  accident  has  happened, 
not  to  have  been,  in  fa6l,  fea-zoorthy. — On  the  other  hand  it  was  faid,  that  this 
principle  of  fea-worthinefs,    contended  for  by  the  defendant's  counfel,   will  be 
liable  to  fo  many  mifapplications,  will  be  fo  favourable  to  litigious  underwriters, 
fo  injurious   in   many  refpecls    to    the    careful    and   honefl   merchant,    that 
experience  mull  and  will  teach  men  to  renounce  it :   and  that  the  only  inflance 
in  which  this  doftrine  of  fea-worthinefs  can  be  adopted,  fo  as  not  to  contra- 
di6l  the  firfl  principles  of  infurance,   is  to  prevent  adiflionefl  man  from  fitting 
out  his  fhip  in  a  fraudulent,  flight,  and  defeftive  manner,  and  fending  her  to 
fea,  knowing,  at  the  fame  time,  that  flie  is  not  properly  fitted  for  the  voyage  : 
there  have  been  many  infliances  of  fliips   commencing  voyages   under  fuch 
circumflances,  as  proved  beyond  contradiflioii  that  they  were  not,  in  faft,  fea- 
worthy  at  the  time  : — a  fhip  when  going  from  London  to  St.  Kitt's,    made 
fo  much  M'ater  that  fhe  was  obliged  to  be  unloaded  and  put  into  a  dock  ;    it 
was  then  difcovered  that  they  had  neglefted  to  calk  her  at  the  head  for  two 
or  three  feet:    apply  to  this  inftance  the  law  maxim,   that  a  fhip  mufl  be 
abfolutely  and  in  faft  fea- worthy,   not  merely  in  the  afllured's  opinion  and 
judgment,  founded  on  due  examination,  but  really  fo;  and  it  will  be  evident 
that  many  of  the   purpofes  for  which  infurances  were  at  firfl  inflituted,   and 
have  fmce  been  continued,   are  no  longer  to  be  anfwered :    where  then  is 
the  difference  between  a  defect  or  a  negled,   whilfl  both  are  equally  unknown 

to  the  affured  ? To  prevent,  therefore,  the  ill  confequences  which  might 

arife  from  the  law,  as  explained  in  this  cafe,  there  was  added  at  the  foot  of 
feveral  policies,  after  the  faid  determination,  the  following  claufe,  viz.  "  it 
is  particularly  agreed,  that  any  infiifficiency  of  thcjhip,  unknown  to  the  affured, 

fliall 


oSi  INSUFFICIENCY. 

Piall  VOL  prejudice  this  in/urance." In  fupport  of  the  Jlxoiid  dedj/on,   it  lias 

been  faid  that,  admitting  the  infurers  were  informed  of  every  circumftance 
relating  to  the  Ihip  known  to  the  affured,  they  never  doubted  that  the  captain, 
who  is  the  owner's  agent,  would  put  the  fhip  into  a  fuitable  condition  for  the 
voyage ;  and  in  all  policies  it  is  exprefly  faid,  that  fhe  is  a  good  Jliip,  which 
binds  the  owners  to  warrant  her  every  way  fiifficient  to  perform  the  voyage, 
barring  the  rifque  of  florms,  &c. : — that  the  captain  ought  to  have  applied  to 
the  judge  of  the  admiraltv-court,  to  order  an  accurate  furvey,  to  know  whether 
the  fhip  was  in  a  condition  to  carry  a  heavy  load  of  fugars  :  this  was  a  duty 
incumbent  on  him  as  the  owner's  agent,  and  which  they  were  anfwerable  for: 
had  fuch  a  furvey  been  made,  the  Ihip-wrights  (on  hearing  of  the  fliip's  being 
loofened,  which  implies  the  weaknefs  of  the  planks  and  timbers,  not  of  the 
flieathing)  would  have  applied  their  chiffels  and  hammers,  ripped  off  part  of 
the  fheathing,  and  the  lining  in  the  fliip's  hold,  and  ej^amined  her  bolts  and 
faflenings,  whereby  they  would  have  found  the  defects  which  afterwards 
appeared,  and  the  impnjjihilily  of  the  fhip's  undertaking  a  voyage  heavy  loaden 
(and  probably  in  worfe  weather  homeward  in  tlie  hurricane  months,  than  flie 
met  with  when  light  on  the  outward)  without  a  thorough  repair ;  but  no 
doubt,  the  captain  acled  for  the  bcfl,  and  with  a  view  to  the  interefls  of  his 
owners,  not  to  pry  into  her  defefts  too  much  : — that  it  cannot  be  faid  that  the 
ftarting  of  thefe  planks  happened  fuddenly  and  in  fair  weather ;  it  mufl  have 
been  gradual,  and  the  effefts  of  flraining  in  the  bad  weather,  on  the  voyage 
outward ;  nor  could  the  bolts  be  rufled  all  at  once  :  wherefore  it  mufl  be 
admitted,  that  the  grand  defects  M'ere  previous  to  the  commencement  of  the 
rifque  entered  into  by  the  infurers,  for  which  they  had  the  common  premium 
on  the  eflabliOied  ufage  and  cuflom,  that  the  fhip  is  every  way  qualified  for  the 
voyage : — that  after  undoubted  proof  of  the  real  worth  of  the  fliip,  and  that 
the  owners  are  paid  tiic  fum  llie  did  aftually  fell  for,  there  cannot  be  the  leaJl 
fliadow  of  reafon  to  compel  the  infurers  to  pay  the  price  of  a  good  fhip,  or 
rebuild  an  old  one,  whofe  defe6ls  were  folely  occafioned  by  the  holts  being 
rnjled  long  before  the  infurers  rifque  commenced ;  in  fo  much  that  every 
plank  probably  mufl  have  been  taken  off  from  the  fliip's  ribs,  and  new  bolts 
or  treenails  drove  in  the  room  of  the  old  ones  : — is  it  not  the  eflabliflied  ufage 
and  cuflom.  that  every  fhip  infured  mufl  be  in  a  condition  lit  for  the  voyage  ? 
Can  it  be  fuppofed  that  the  underwriter  infures  againfl  what  has  already 
happened  ?  Unluckily  for  the  owners,  her  lafl  voyage  proved  one  more  than 
enough,  and  expofed  their  inadvertency  to  her  being  a  French-built  fhip, 
which  ufually  become  wrecks  in  a  few  years : — diat  owners  of  fhips  are 
fuppofed  to  gain  by  them  ;  and  if  they  keep  them  on  the  fea  too  long,  they, 
and  not  the  infurers.  ought  to  bear  the  lofs  ;  if  not,  the  infurers  mufl,  in  the 
end,  pay  for  every  fhip  x\\dL\.faiU  on  her  lajl  voyage  : — could  the  jury,  on  the 
firfl  trial,  on  rcflcclion,  fay,  that  a  legal  furvey  was  taken,  and  every  proper 
repair  done  to  the  fhip  to  enable  her  to  perform  her  voyage?  In  this 
particular  they  perplex  two  things  together,  the  repairs  done  at  London,  and 
thofe  which  fl)ould  have  been  done  to  fit  the  veflel  for  returning  home  :  and 
tliey  forget  the  alarming  hiflory  given  by  the  captain's  letter,  of  "the  great 
*"  '      '  difficulty 


INSUFFICIENCY.  285 

difficulty  there  was  to  keep  her  from  finking,  in  her  weak  loofened  condition, 
&c."  whereas  the  prefent  infurers  are  only  connected  with  the  voyage  home, 
and  are  to  Hand  in  the  place  of  the  allured,  on  a  fliip  fit  for  the  voyage  : — 
that  the  grand  point  therefore  is,  whether  the  infurers  are  to  be  anfwerable 
for  defefts,  which  are  inconteftably  proved  to  have  happpened  long  before 
their  rifque  commenced ;  and  whether  after  fuch  defecis  appear,  they  are 
obliged  to  rebuild  a  worn  out  fhip  for  an  owner,  and  then  (land  the  rifque 
into  the  bargain  ?  It  is  of  no  moment  how  or  when  thefe  defefts  were  found 
out,  if  they  did  not  happen  within  the  time  of  the  contraft  :  truth  comes  forth 
in  various  ways  ;  the  captain  very  judicioufly  returned  inftantly  to  make 
another  and  proper  furvey :  the  infurers  do  not  refufe  anfwering  for  the  rifque 
of  the  weather  and  frelh  accidents ;  but  they  require  and  expeft,  that  the 
owners  (hall  find  new  bolts  and  other  materials  to  put  the  fliip  in  a  condition 
jit  to  proceed  :  if  it  was  impojjible,  the  lofs  certainly  falls  on  themfelves : — 
that  a  fhip  of  this  fort  may  be  fitted  from  200I.  to  i,oool.  in  her  hull  only,  for 
if  the  truth  had  been  known,  (he  ought  to  have  had  new  bolts  before  (he  left 
London  : — that  the  judge  of  the  vice  admiralty-court  is  the  eflabliflied  perfon 
to  have  been  applied  to  at  firft ;  the  means  of  knowing  whether  the  fliip  was 
really,  aftually,  and  in  faft,  capable  of  performing  the  voyage,  were  not 
ufed  ;  the  captain  is  not  the  infurers  agent,  but  only  the  owners,  until  the 
voyage  is  actually  begun,  and  the  fiiip  every  way  well  qualified  for  that 
purpofe  : — it  was  further  faid,  that  a  fliip  muft  be  able  to  perform  her  voyage 
unlefs  fome  external  accident  fliould  happen ;  that  a  fliip  incapable  is  no  fliip  at 
all ;  that  the  owners  knowledge  or  ignorance  of  thefe  circumftances  does  not 
alter  the  cafe;  that  if  flie  fliould  eventually  appear  incapable,  from  fome  latent, 
internal  defed,  of  performing  the  voyage,  flie  is,  on  this  account,  incapable  of 
being  th-^'  fubje6l  of  infurance  either  on  the  body  of  the  fliip  or  on  goods  : — 
that  the  fliip  was  not  cond  mned  on  account  of  that  recent  leak,  but  upon 
account  of  the  faflenings  of  her  bottom  (chiefly  bolts  and  fpikes)  "  being 
entirely  decayed  and  eat  up  with  rufl,  befides  th  rifl<.  of  her  not  bearing  to  be 
hove  down,  as  flie  is  fo  very  loofe,  &c."  it  is  therefore  a  faft,  that  the  fhip  was 
in  the  pangs  of  a  natural  death  previous  to  the  commencement  of  the  prefent 
infurers  rifque  : — that  the  determination  of  latent  defects  depends  on  various 
circumftances  ;  latent  defefts  are  admilhble  in  fome  cafes,  and  not  in  others  ; 
a  plank  may  only  be  tacked  on  to  a  new  fliip,  and  omitted  to  be  thoroughly 
faftencd  ;  by  which  the  fhip  may  be  lofl  :  in  that  event  the  infurcrmufl  pay: 
but  if  that  omiffion  be  found  out  before  the  fhip  has  well  left  the  port,  it  lies 

with  the  owner  to   pay  the  expence  of  fixing  it. It  was  further  obferved, 

that  every  infurer,  who  underwrites  fhips  or  goods  under  the  new  claufe  ; 
particularly  agreeing,  "  that  any  infufficiency  whatever  of  the  fhip  unknown 
to  the  aflured  or  his  or  their  agents,  fhall  not  prejudice  this  infurance,"  ought 
to  be  particularly  careful  as  to  the  built,  age,  and  quality  of  the  fhip  they  may 
engage  with  :  but  even  with  this  claufe,  an  infurer  will  not  be  obliged  before 
twelve  difcerning  men  to  pay  an  imaginary,  but  only  the  jufl  value  of  a  fliip, 
on  full  conviction  of  her  real  worth,  both  external  and  internal: — that,  in 
regard  to  the  infurance  of  goods,   this  claufe  fcems  a  very  proper  one,  as  it 

4  A  is 


286  INSUFFICIENCY. 

IS  not  to  be  fuppofed,  that  -a.  Jliipper  can  have  time  or  accefs  to  know  the 
real  character  or  quality  of  every  Ihip,  he  muft  of  necefiity  put  his  goods  on 
board  of;  but  if  an  owner,  whofe  bufinefs  it  is  to  know  the  origin,  age, 
quality,  and  furniture  of  his  fliip,  (hall  infift  on  that  claufe,  it  will  give  room 
for  fufpicion,  that  there  are  defefts  he  does  not  chufe  to  ftand  the  rifque  of, 
and  therefore  no  fhip  under  that  llipulation,  but  fuch  as  are  well  known, 
if  an  owner  will  have  it  fo,  (liould  be  underwrote  without  a  higher  premium : 
— that  fuppofing  the  Mills  Frigat  had  failed  with  a  fine  breeze  and  fmooth 
fea,  and  when  off  North-America,  had  accidentally  fprung  the  leak,  and 
put  in  there,  no  material  difference  could  properly  have  accrued  to  the 
benefit  of  the  owners;  for  the  proteft  could  not  honeflly  have  related 
that  the  leak  was  occafioned  by  the  violence  of  the  weather ;  and  when  the 
cargo  would  have  been  unloaded,  the  latent  defefts  would  have  appeared ; 
and  on  no  juft  ground  could  the  infurers  have  been  made  liable  to  rebuild  the 

fhip,  even  at  a  port  where  new  materials  could  be  had  cheap. N.  B.  The 

owners  applied  for  a  third  trial  in  the   court  of  common  pleas,  which  was 
rejefted,  and  thereupon  brought  an  aclion  in  the  court  of  exchequer :  w-here, 
in  defence  of  the  owner's  cafe,  it  was  urged  that  the  prefent  enquiry  relates 
principally  to  a  matter  of  cuftom,  viz.   "  what  warranty  is  the  affured  under- 
flood  to  make  the  afllirer?" — This   important  queflion  had  been  three  times 
asitated  in  the  courts,  and  the  owners  had  in  tzoo  of  thofe  trials   obtained 
verdifts  : — they  faid,  this  conteft  does  not  concern  merely  the  owners  of  this 
particular  fiiip,  it  may  in  fome  fenfe  hereafter  extend  to  every  man  who  may 
have  property  at  fea  to  infure,   and  to  guard   againft  the  artful  cavils,  the 
nice  diflinflions  by  which  others  have  fuifered  : — that  neither  cuftom,  equity, 
nor  law,  as  founded  on  common  fenfe,  can  require  of  the   fhip-owner  (if  no 
judge  of  fiiips  himfelf)   to   make  any  repairs  on  his  (liip,   but  fuch  as  the 
captain,  or  fhip-builder,  Ihall  determine  to  be  neceffary  for  that  voyage  which 
file  is  to  undertake  ; — if  they  whofe  particular  employment  it  is  to  examine 
or  repair  fliips,  have  no  fufpicions,  or  communicate  none,   that  any  defeats 
attend  them,  the  owners  are  juftified  in  believing  them  to  be  fea-worthy  ; — 
if  the  owner  gives  orders  to  the   captain,  or  fhip-builder,  to  do  every  thing 
which  is  nccelfary,  the  owner  may  juftly  conclude,  that  they  have  done  all 
which  ought  to  be  done  : — that  if  a  fiiip  has  no  fymptoms  of  any  decay,  or 
internal  defecls,  file  is  never  taken  to  pieces  with  a  view  of  fatisfying  doubts 
which  never  exifted : — that  in  the  conftruftion  of  a  (hip  there  are  fo  many 
various,  but  connefted /wj-Zv,  each  of  which  muft  be  in  perfeft  good  condition 
to  make  her  abfolufely  fea-worthy,  that  a  ftricl  examination  oi  fovie  of  thefe 
parts,  will  not,  cannot,  certainly  afTure  the  builder  that  all  the  other  parts   are 
as  they  ought  to  be ;  and  that  an  examination  of  all  the  parts  effential  to 
fea-worthineis  cannot  be  made,  unlefs  the  ftiip  be  taken  to  pieces : — that  after 
a  voyage   is  begun,   if  by  any  ways   or    means  whatever,   any   fubfequeni 
difcovery  of  internal  defetts  (hould  to  both  parties  unexpecledly  arife  ;  and 
in  coufequencc   of  this   difcovery,    the  voyage  Ihould  be  overfet,    and  the 
intereft  totallv  loft  to  the  owners,  the  underwriter  oug;ht  not  to  avail  himfelf 
of  this  rA;/o/?ycu7(/ evidence: — that  a  warranty  of  a  Ihip's  being  good,  can 

only 


INSUFFICIENCY.  287 

only  imply,  that  (he  appears,  and  is  believed  to  be  good,  by  that  kind  of 
examination  which  is  ufually  made  : — that  every  captain  fo  well  fatisfied  as  to 
venture  his  life  in  a  fhip,  muft,  by  this  fmgle  aft  of  failing  in  her,  fhew  that 
his  opinion  of  her  was  good : — that  the  principle  of  an  owner's  abfolute 
warranty  of  fufficiency,  was  carrjing  matters  to  fuch  extremes,  that  owners 
and  freighters  began  to  be  very  ferioudy  alarmed  at  the  confequences : — it 
implies,  that  a  man  is  bound  at  his  peril  to  make  certain  and  abfolute 
conclufions  from  uncertain  and  precarious  premifes :  is  bound  to  warrant 
concerning  things  from  their  nature  perilhable,  by  their  fituation  often 
invifible,  that  which  can  only  be  truly  warranted  of  things  which  cannot 
decay,  and  which  can  always  be  feen ; — that,  as  to  freighters,  the  neceffity 
of  altering  both  policies  and  bills  of  lading,  will  appear  from  this  faft  :  "  an 
eminent  merchant,  the  freighter  of  goods,  (hipped  on  a  general  fliip  in 
America,  tried  this  point  with  an  underwriter,  deceafed,  on  this  fingle 
principle  ;  that  the  freighter  was  not  refponfible  for  the  infufhciency  of  the 
fhip  ;  and  on  this  one  principle,  without  any  other  circumftances  whatever  to 
affeft  the  quellion,  the  freighter  was  cafl,  and  the  policy  vacated ;"  and  other 
freighters  under  the  fame  ci  cumftances,  have  not  recovered  their  infurances; 
— ^that,  if  this  be  law,  is  it  not  evident  that  whenever  a  lofs  happens  under 
ihefe  circumftances,  the  freighter  has  no  fecurity  from  his  policy  under  the 
prefent  form,  but  that  which  arifes  from  the  mere  honour  of  the  underwriter  ? 
But  where  is  this  law  to  be  found  ?  does  it  arife  from  any  acl  of  parliament, 
any  ftatute,  any  folemn  determination  of  any  one  cafe  fimilar  to  this,  which 
has  been  carried  through  all  the  inferior  courts  to  a  fuperior  one  ? — that 
whatever  feverity  of  conJlruElion  may  be  given  to  any  general  principles,  yet 
that  this  particular  cafe  is  an  exception  to  every  general  rule ;  for  the 
captain's  letter  (mentioned  in  the  cafe  as  fliewn  to  the  underwriters)  being 
annexed  to  the  policy,  muft  be  confidered  as  fetting  afide  every  fuppofed 
warranty,  either  in  the  letter  or  the  fpirit  of  the  contract :  the  owners  by 
fliewing  this  letter  muft  be  fuppofed  to  fay,  "  Gentlemen,  this  fliip,  though 
called,  as  a  matter  of  courfe,  the  good  fliip,  has  met  with  fome  damage  ;  the 
captain  fays  he  will  make  fuch  repairs  as  are  necelfary,  and  we  doubt  not  but 
he  will  do  his  beft,  confidering  the  place  he  loads  at ;  you  well  know  thai 
there  are  no  docks  in  this  ifland,  but  that  ftie  muft  lie,  till  her  failing,  in  an 
open  road,  and  that  ftie  can  only  receive  fuch  repairs  as  are  to  be  made 
whilft  (he  is  afloat;  you  know  it  too,  to  be  the  conftant,  the  invariable 
cuftom  for  ftiips  in  this  trade  to  have  but  one  fitting  for  the  outward  and 
homeward  voyage  ;  and  therefore,  though  you  now  take  only  the  homeward- 
bound  rifque,  yet  this  is  fo  far  neceflarily  connefted  with  the  outward,  that 
you  can  only  form  your  opinion  of  this  fliip,  from  her  charafter  when  Are 
went  from  London,  and  from  the  fubfequent  advice  which  this  letter  has 
given  you  :  if  you  think  that,  under  all  tliefe  circumftances  fairly  difclofed  to 
you,  flie  is  a  proper  rifque,  the  policy  is  before  you,  write  it,  or  not :" — that 
when  a  fliip  has  begun  her  intended  voyage,  and  in  the  profecution  of  it 
fprings  a  leak,  which  obliges  her,  for  the  prefervation  of  the  whole,  to  make 
for  the  neareft  port,  the  want  of  docks  and  materials,  to  enable  her  to  fail 

again 


288  i  'N    S    U    F"F    I    CI    E    N    C.:Y.! 

again  from  this  port,  is  as  real  a  deftruftion  of  the  intereft,  to  tlie  owners^ 
as  if  fhe  had  funk  before  fhe  got  into  it ;  and  whether  the  port  into  which  (he 
returned,  be  the  fame  from  whence  (he  failed,  or  any  other,  has  not  the  leall 
influence  on  this  queflion  ;  for  if  the  port  into  which  the  captain  and  failors; 
are  obliged  to  carry  her,  is  a  place  fo  circumftanced,  that. the  fhip  never  can 
return  from  thence,  (he  is,  and  mull  be,  in  confequence  of  this  lituation, 
for  ever  loft  to  the  owners,  and  it  has  more  the  appearance  of  infult  than 
of  argument  to  fay,  "  there  is  your  fhip  again,  how  are  you  injured?"  for 
the  fhip's  being  in  that  place,  in  which  fhe  cannot  be  repaired,  and  from, 
whence  (he  can  never  fail,  is  the  very  prejudice  to  the  owner's  intereft,  froni 
which  they  claim  an  indemnification,  agreeable  to  both  the  letter  and  fpirit 
of  the  contraft,  that  their  "  rifque  fhall  continue  and  endure  until  the  faid 
fhip  fliall  be  arrived  at  her  deftined  port:" — that  throughout  the  whole  courfe. 
of  this  enquiry,  concerning  the  principle  of  infurance,  as  applied  to  this  fhip, 
neither  the  underwriters  nor  their  advocates  have  ever  juflly  diftinguifhed 
between  the  fituation  the  fhip  appeared  to  be  in,  after  due  examination  at 
the  time  in  which  the  contraft  was  made,  and  the  unexpefted  fituation  fhe 
was  judged  to  be  in,  after  the  underwriters  had  begun  the  rifque,  but  wanted 
to  be  off  from  their  bargain :  they  vainly  flatter  themfelves  that  events  which 
arife  in  July,  events  unforefeen,  unexpefted,  and  impoffible  to  be  avoided, 
may  be  julUy  applied  to  vacate  a  contraft  made  in  the  preceding  June  :  they 
quote,  with  great  readinefs,  all  the  fubfequent  proofs,  or  prefumptions  of 
infufficiency,  and  contrary  to  every  rule  of  evidence,  and  fair  reafoning, 
would  infer,  that  "  whatever  is  known  afterzoards,  might,  or  ought  to  have 
been  guarded  againft  before :" — that  the  propofed  new  claufe  does  not  exempt 
the  owner  from  repairing  any  defefts  which  are  known,  or  fufpefted,  but 
only  from  being  refponfible  for  fuch  as  could  not  be  known ;  and  under 
every  fuch  inftance  of  fufpefted  fraud,  the  underwriters  could  proceed  in 
their  defence  at  law  againfl  the  difhonefl  owner,  exaftly  in  the  fame  manner 
as  they  would  have  done,  if  this  claufe  againft  infufficiency  had  not  been 
ufed  ;  for,  as  already  obferved,  "  if  an  owner  neglefts  to  examine,  or  omits 
to  repair  his  fliip  (which  the  fhip-builders,  carpenters,  and  failors  cannot 
avoid  knowing)  it  muft,  and  always  will,  be  underftood  by  a  jury,  that  the 
owner  aftually  did  know  that  which  was  in  his  power,  and  which  it  was  his 
duty  to  know." — <Ca/e  of  the  Mills  Frigat. 

4.  It  was  obferved  by  the  counfel  (in  the  cafe  of  the  Earl  of  March  v. 
Pigot,  5  Burr.  2824)  that  "  the  cafe  of  the  Mills  Frigat  was  an  infurance 
upon  a  fhip  which  had  a  latent  defeB  totally  unknown  to  the  parties  :  and  the 
infurcrs  were  holden  not  liable,  upon  account  of  the  fhip's  being  notfea- 
xoorthy,  though  fuch  delecl  was  not  known." — Whereupon  Lord  Mansfield 
faid ;  "  I  differ  totally  in  opinion  from  that  doftrine.  The  determination  in 
that  cafe  (which  was  made  by  my  Lord  C.  J.  Wilmot  and  me,  to  whom  it 
was  referred)  was  made  quite  upon  another  ground  :  and  the  change  of 
opinion  in  the  court  of  common  pleas  happened  upon  the  citing  of  two  cafes 
that  had  been   determined   before    me  ;    which  cafes   were  miftaken. — '.The 

Infured 


INSURANCE.  289 

inrured  ought  to  know  whether  his  fhip  -was/ea-worthy  or  not  at  the  time  flie 
Jht  out  upon  her  voyage  ;  but,  how  {hould  he  know  the  condition  fne   might 
be  in,  after  fhe  had  been  out  a  twelvemonth  ?" 

5,  Remark.— With  all  due  deference  to  the  opinion  of  the  noble 
propofer  of  the  preceding  queftion,  another  might  be  put,  viz.  If  a  (hip 
ought  to  be,  in  fact,  fea-worthy  when  fhe  fets  out  on  one  voyage  (which  is 
granted  in  that  queftion)  ought  (he  not  to  be  equally  fo  when  flie  fets  out  on 
another  ;  fince  the  nature  of  the  contract  with  the  infurers  is  the  fame,  whether 
the  voyage  be  outward  or  homeward  ? — It  is  confidered  by  them  that  the 
agents,  or  mafter  acling  for  the  infured,  or  owner,  ought  to  know  what  the 
infured  himfelf  (if  on  the  fpot)  ought  to  know  ;  and  it  makes  no  difference 
from  whence  the  fliip  is  to  depart,  efpecially  if  it  be  from  a  place  where  any 
infuiiFiciency  in  her  might  firft  be  cured :  and  if  it  be  from  a  place  where  it 
cannot  be  cured,  flie  ought  not  to  take  in  a  cargo,  or  undertake  the  voyage. 

6.  StE  Prelim.  Di/c.  ^2-  -^(^cident,  Anchor,  Average,  Cable,  Condemnation, 
Coiifirudion,  Cordage,  Damage,  Foreign-Court,  Fraud,  Freight,  General- 
Average,  Goods,  Injured,  Leakage^  Overloading,  Perijhablc-Commodities ,  Protejt, 
Repair,  Rifquc,  Sea-worthy,  Ship,  Stoioage,  Wear  and  Tear. 


INSURANCE. 

1.  'T^  H  E   various  matters    which    relate    to   infurance,   being  treated    of 
-■-     diftinftly  under  their  feveral  refpeftive  heads  throughout  this  work, 
it  will  fuffice  to  fpeak  here  of  the  fubjeft  in  general. 

2.  The  civilians  have  laboured  much  in  their  enquiries  upon  the  nature 
of  the  contraBo^  infurance  ;  "  whether  it  be  fponfio,  contraftus  qui  re  conftet, 
flipulatio,  fidejuftio,  litterarum  obligatio,  emptio-venditio,  locatio,  focietas, 
mandatum,  and  whether  it  be  contractus  innominatus  vel  nominatus  ?" — 
But,  all  this  is  frivolous  and  mere  fubtility  :  it  is  fufficient  to  know  that 
infurance  is  a  contracl  by  which  the  infurer  promifes  to  the  infured,  or  him 
who  hath  intereji  in  the  fhip,  cargo,  or  thing  which  is  infured  (for  otherwife  it 
is  not  an  infurance,  but  a  wager)  to  guarantee  or  indemnify  him  from  all  the 
lofles  and  damages  which  fhall  happen  thereto,  without  fraud  or  fault  of  the 
infured,  by  unavoidable  accidents,  or  dangers  of  the  fea,  during  the  voyage,  or 
during  the  time  of  the  rifque,  according  to  the  tenor  of  the  contraft,  or  policy  ; 
in  confideration  of  a  fum,  called  premium,  paid  by  the  infured  to  the  infurer. 

1  offer  this  definition  of  infurance,  as  more  adequate  and  complete  than 

any  I  have  met  with  ;  and  as  comprehending  that  of  Loccenius,  Stypmannus, 
Stracca,  Scaccia,  Targa,  Kuricke,  Bornier,  and  all  the  efleemed  authors 
who  have  treated  of  it. 

3.  Grotius  calls  it  "  Contraftus,  in  fafto  pra^ftandae  indemnitatis  circa 
cafus  fortuitos  averfio  periculi ;"  and  obferves  that  it   was  unknown  to  the 

4  B  ancients : 


290  INSURANCE. 

ancients;  Be  jur.  bcL  &  pac.  lib.  2.  c.  12.  f.  3. — Gerard  Malynes,  in  his 
Lex  Mercatoria ;  Molloy,  De  jure  maritimo,  and  feveral  other  Engliflt 
authors,  feem  to  favour  a  contrary  opinion,  founded  on  a  paffage  oi  Suetonius, 
in  Vita  Claudii,  c.  18.  which  alludes  fomewhat  to  infurance  :  but  the  learned 
civilian  and  fenator  Langenbcck,  of  Hamburgh,  in  his  annotations  on 
infuranccs,  has  very  judicioully  and  evidently  fliewn  that  the  meaning  of 
Suetonius  was  no  more  than  this ;  that  in  time  of  public  danger,  whenever 
any  private  man's  property  fhould  be  made  ufe  of  for  the  fervice  of  the 
commonwealth,  the  lofs  and  damage  of  the  private  perfon  were  to  be  made 
good  by  the  public :  this  is  founded  in  juflice  and  equity ;  and  is  followed 
at  this  time  by  all  governments  that  are  guided  by  equitable  principles :  but 
it  cannot  be  paralleled  with  the  infurance  here  treated  of;  which  is  a  matter 
of  choice,  and  for  conveniency,  between  private  perfons. — Concerning 
infurance  of  this  nature  we  meet  with  nothing  older,  than  an  ordinance  made 
at  Barcelona,  mentioned  in  Cafa  Regis's  Confolato  del  Mare,  or  a  treatife 
on  the  fea-laws  of  Oleron,  which,  though  without  date,  by  fome  fafts  it 
recites,  feemsto  have  been  made  about  the  year  1435  ;  and,  by  the  preamble 
to  this  ordinance,  it  appears  that  not  many  others  had  preceded  it,  fince  it 
begins  with  thefe  words ;  "  Whereas  in  times  paft  but  few  ordinances  of 
infurance  have  been  made ;  which  defect  wanted  correction,  and  amendment," 
&c. :  but  in  14S1,  the  crown  of  Aragon  being  united  to  the  Spanifii 
monarchy  by  the  marriage  of  Ferdinand,  the  catholic,  with  Ifabella,  heirefs  of 
Caflile,  the  Catalans  became  fubjefted  to  the  laws  of  Spain,  and  therefore 
no  further  notice  is  to  be  taken  of  their  particular  laws  at  Barcelona. — The 
next  remarkable  ordinance  is  one  made  at  Florence  in  1523,  which  is  ftillin 
force  at  Leghorn  :   then  follows  the  celebrated  one  of  Philip  ii.  of  Spain,  1556. 

4.  According  to  Stypmannus,  Cleiracs  Guidon,  and  many  other  authors, 
the  contraft  of  maritime  infurance,  pafled  from  the  Italians  amongll  the 
Spaniards ;  afterwards  into  Holland ;  and  then  became  in  ufe  amongft  all 
commercial  nations. 

5.  MoNS.  Savary  fays,  the  Jews  were  the  firft  who  introduced  the 
pradice  of  infurance  about  1183. — Being  driven  from  France  they  made  ufe 
ofthis  wav  to  avoid  the  rifquing  entirely  the  lofs  of  their  effefts  ;  but,  the 
current   praclice   of  infurance    was   firit   eftablifhed  in    England. — Did.  die 

Citoxcn. 

6.  Whoever  was  the  firft  contriver  of  it,  it  has  for  many  ages  been 
praclifed  in  this  kingdom ;  and  is  fuppofed  to  have  been  introduced  here 
jointly  with  it's  twin  brother,  exchanges,  by  fome  Italians  from  Lombardy, 
who  at  the  fame  time  came  to  fettle  at  Antwerp,  and  among  us  ;  and  this 
being  prior  to  the  building  the  Royal-Exchange,  they  ufed  to  meet  in  the 
place  where  Lombard-Street  now  is,  at  a  houfe  they  had,  called  the  Pawn- 
houfe,  or  Lombard,  for  tranfafting  bufinefs  ;  and  as  they  were  then  the 
(ble  negociators  of  infurance,  the  policies  made  by  others  in  after  times  had 

a  claufe 


INSURANCE. 


291 


a  claufe  inferted  that  "  they  fliould  be  of  as  much  force  and  effeft  as  thofe 

heretofore   made    in  Lombard-Street." As  infurances  in  time  grew  more 

general  in  England,  the  legiflature,  by  flat.  43  Eliz.  c.  12.  erefted  a  court 
called  the  Court  of  Policies  of  AJfurance,  for  deciding  all  difputes  and 
differences  concerning  them  in  a  fummary  way  ;  with  an  office  for  making 
and  regiflering  of  policies,  which  was  kept  on  the  wefl  fide  of  the  Royal- 
Exchange  ;  but  this  did  not  exclude  others  from  making  infurances,  in  whofe 
policies  were  added,  immediately  after  the  above-mentioned  claufe,  the  words 
following  "  or  in  tlie  Royal-Exchange  or  any  where  elfe  ;"  and  the  whole  flill 
remains  in  the  policies  now  in  ufe. 

7.  This  branch  of  bufmefs  was  originally  confined  to  maritime  affairs 
folely ;  but  by  modern  laws  or  cuftoms,  infurances  are  much  extended,  and 
may  be  made  as  follows,  viz. — on  divers  kinds  of  merchandifes  ;  on  fhips 
or  parts  of  fhips ;  by  the  month,  or  for  a  time  flipulated,  or  to  one  fmgle 
port,  or  out  and  home,  with  liberty  to  touch  at  the  different  places  mentioned 
in  the  policy,  or  for  a  trading  voyage  ;  on  the  freight,  or  hire  of  fhips ;  on 
the  money  for  fitting  out  of  fhips  :  on  bottomry,  or  money  borrowed  on  the 
keel  of  a  fliip,  or  on  the  goods  to  be  fhipped  on  board  her,  called  refpon- 
dentia  ;  on  fhips  and  their  cargoes  jointly ; — on  the  profit  expefted  by  the 
goods ;  in  fome  places,  on  interelt  or  no  interefl,  i.  e.  M'ithout  further 
proof  of  interefl  than  the  policy,  and  on  the  rife  or  continuance  of  the 
current  price  of  merchandifes  ; — on  houfes,  furniture,  warehoufcs,  cellars, 
and  the  value  of  goods  laid  up  therein,  againfl  danger  from  fire  (for  which 
purpofe  there  are,  in  London,  feveral  focieties  and  offices  erefled,  with  a 
limitation  to  this  branch  only)  on  fifheries,  and  the  bounties  to  fhips  employed 
therein ;  on  the  lives  of  men,  and  their  liberty  ;  on  cattle  ;  on  lotteries  ;  alfo 
on  goods  fent  by  land,  or  by  hoys,  or  lighters,  &c.  on  rivers ; — and,  in 
general,  on  every  kind  of  property  or  interefl,  in  whatfoever  fituation,  liable 
to  any  rifque  of  lofs  or  damage  : — the  whole  according  to  the  circumflances 
agreed  upon  and  underftood  by  the  parties,  and  under  the  reflriflions  of  the 
cufloms,  ufages,  laws,  and  ordinances,  of  the  refpeftive  countries,  in  which 
the  contraft  is  made. 

8.  Every  perfon  may  infure,  Avho  by  the  laws  of  his  country  has  a 
right  to  difpofe  of  his  property  :  but  in  fome  places  where  ordinances  relating 
to  infurances  are  in  force,  many  perfons  are  excepted  ;  particularly  thofe 
concerned  either  in  the  management  or  direction  of  them ;  as  infurance- 
brokers,  commiffioners,  and  fecretaries  of  any  chambers,  or  tribunals,  for 
judging  of  differences  that  may  arife  in  this  branch  of  bufinefs  ;  fince  they 
ought  all  to  be  men  flriftly  impartial :  nor  in  any  country  whatfoever, 
except  England,  are  brokers  permitted  to  infure. 

9.  Notwithstanding  all  ancient,  and  fome  modern  ordinances  relating 
to  infurance,  enjoin  the  infured^  in  explicit  terms,  to  run  part  of  the  rifque 
themfelves ;  nay,  in  fome  cafes,  that  are  likely  to  give  occafion  to  fraud, 

forbid 


L'93 


INSURANCE. 


forbid  infuring  at  all;  yet  fuch  injunftions  and  prohibitions  are  commonly 
evaded,  and  feldom  long  complied  with :  the  cullom  of  overlooking  or 
defpenfing  with  the  difpofition  of  the  law  in  thofc  refpe^ls  has  crept  in 
every  where. 

10.  Insurances  promote  and  fupport  trade  and  navigation,  as  thereby 
the  rifques  of  diligent,  indullrious,  and  inventive  perfons,  are  fo  leffened, 
that  they  may  engage  even  in  important  undertakings  :  it  is  eafily  underllood 
how  the  public  is  benefited  hereby  :  and  by  taking  luch  precaution,  as  making 
infurance,  a  greater  fliare  of  confidence  is  acquired  amongft  individuals : — 
but,  as  the  beft  inftitutions  are  fubjeft  to  abufe,  certain  bounds  and  regu- 
lations are  neceflary,  which,  whilft  they  give  fuch  latitude  as  may  promote 
and  encourage  trade,  ought  not  to  be  fo  extremely  wide  as  that  ill  confequences 
may  enfue.  That  this  confideration  (hould  be  attended  to  in  enacting  all 
laws  and  ordinances  relating  to  infurances,  is  not  to  be  controverted  ;  nor  that 
it  fliould  alfo  be  had  in  view,  in  the  explanation  and  application  of  thofe  laws 
to  particular  cafes. 

11.  The  learning  relating  to  marine  infurances  hath  of  late  years  been 
greatly  improved  by  a  feries  of  judicial  decifions,  which  have  noweftablifhed 
the  law  in  fuch  a  variety  of  cafes,  that  (if  well  and  judicioufly  colle61ed) 
they  would  form  a  very  complete  title  in  a  code  of  commercial  jurifprudence  : 
but,  being  founded  on  equitable  principles,  which  chiefly  refult  from  xhtfpecial 
circumflances  of  the  cafe,  it  is  not  eafy  to  reduce  them  to  any  general  heads 
in  mere  elementary  inftitutes  :  thus  much  may  however  be  faid  ;  that,  being 
contrads,  the  very  ejjence  of  zohic/i  conjijls  in  obfcrving  the  purejl  good  faith 
and  integrity,  they  are  vacated  by  any  the  leajl  fhadoxo  of  fraud  or  undue 
concealment :  and,  on  the  other  hand,  being  much  for  the  benefit  and 
extenfion  of  trade,  by  diftributing  the  lofs  or  gain  among  a  number  of 
adventurers,  they  are  greatly  encouraged  andprotefted  both  by  common  law 
andafts  of  parliament. — 2  Black.  Comm.  461. 

12.  For  a  more  comprehenfive  view  of  this  fubjeft,  the  nature  of  divers 
commercial,  maritime,  and  other  matters  which  have  affinity  therewith, 
muft  alfo  be  well  underllood ;  and  indeed,  the  fenfe  of  the  marine  laio,  as 
well  as  the  eftabliflied  cifioms  and  ufages  of  traders,  as  they  concern  owners, 
freighters,  mafters  of  fhips,  mariners,  &c.  : — for  there  is  frequently  fo 
neceflary  a  dependency  and  connexion  between  all  thefe  matters,  and  fuch 
an  involution  of  circumflances,  that  the  evidence,  in  regard  to  cafes  of 
infurance,  cannot  be  come  at,  nor  a  right  judgment  made,  without  taking 
many,  and  fometimes,  perhaps,  all  of  thefe  things  into  due  confideration. 

13.  It  is  notorious  to  all  the  mercantile  world  that,  as  the  Englifli  infnrers 
pay  more  readily  and  generoufly  than  any  others,  mofl:  infurances  are  done 
in  England :  we  infure  at  lower  rates  than  other  nations,  becaufe  we  have 
more  bufinefs  of  this  kind,  and  the  fmallnefs  of  our  profit  is  compenfated  by 

the 


INSURED. 


o 


93 


the  frequency ;  the  cheapnefs  of  infurance,  and  the  eagernefs  of  foreigners  to 
infure  here,  reciprocally  contribute  to  each  other ;  we  are  often  applied  to, 
becaufe  we  infure  at  an  eafy  rate  ;  and  we  can  infure  at  an  eafy  rate,  becaufe 
we  are  often  applied  to. 

14.  In  Holland,  France,  Sweden,  and  mofl;  other  countries,  they  may 
not  infure  the  property  of  enemies. — See  the  curious  and  interefting  queftion 
concerning  the  advantage,  difadvantage,  and  legality  of  fuch  infurance  fully 
difcufled  under  title.  Enemy. 

1^.  It  appears  by  the  Mercure  de  France,  December  1752,  2  vol.  p.  46 
and  47,  that  the  late  Sieur  Montaudoin,  of  Nantes,  had  undertaken  a  large 
work  on  marine  infurances  and  averages. — The  Sieur  Valin,  in  his  elaborate 
commentaries  on  the  famous  ordinance  of  Louis  xiv.  1681.  makes  the 
following  remark  concerning  him  ;  viz.  "  This  celebrated  merchant  had  in 
reality  great  abilities,  and  extenfive  commercial  views  ;  but  he  fometimes 
gave  into  fmgular  ideas,  which  however  he  no  longer  retained,  when  their 
illufion  and  danger  were  made  apparent  to  him." — Hence  it  fhould  feem 
that  Monf.  Montaudoin  did  not  proceed  in  the  afore-mentioned  undertaking : 
it  is  however  certain,  that  the  commercial  world  has  long  flood  in  great 
need  of  fuch  an  one ;  and  it  is  hoped  that  the  work  here  prefented  may, 
inaconfiderable  degree,  fupply  the  defeft. 

16.  See  Prelim.  Difc.  6,  8,  58,  61,  &c. ;  and  each  refpcEiive  title 
throughout  this  book. 

INSURED. 

1,     A    T  the  time  of  making  an  infurance,  the  infured  ought  to  communicate 

-^^^  every  circumftance  within  his  knowledge,  information,  or  belief,  that 

may  be  in  the  leafl  material  for  the  infurer  to  form  his  own  judgment  of  the 

rifque. The  infijred  ought  on  all  occafions  to  have  a  drift  regard  to  truth, 

and  avoid  fraud  and  deceit,  as  corroding  cankers  to  his  reputation  and 
fortune  ;  for,  however  cunningly  the  malk  is  wore,  chance  may,  or  time 
certainly  will,  difcover  the  cheat,  and  render  the  wearer  expofed  to  the 
contempt  and  infults  of  thofe  he  has  impofed  upon. 

2.  The  infured  ought  to  inform  the  infurer  faithfully  and  without  delay 
of  every  accident,  and  whatfoever  comes  to  his  knowledge,  from  time  to 
time,  refpefting  the  infurance  ;  and  ought  alfo  to  do  the  utmofl  in  his  power 
for  the  fafety  or  recovery  of  the  intereft  infured,  according  to  the  authority 
given  him  by  the  policy  "  to  fue,  labour,  and  travel  for,  in  and  about  the  de- 
fence, fafeguard,  and  recovery,  &c." — for  inaftivity  would  be  highly  culpable. 

3.  Insurers  are  not  anfwerable,  when  an  accident  happens  through  the 

aft  or  fault  of  the   infured. — Roccus,   169.    not.  22. Nor  if  it  happens 

through  the  aft  or  fault  of  his  agent  or  fatlor,  for  he  reprefcnts  elfentially  the 
infured.-— 2  Valin  s  Co?)im.  77. 

4  C  4.     Ir 


294  INSURER. 

4.  If  any  perfon  infures  any  thing  as  his  own,  which  belongs  to  him  only 
In  common  with  others,  the  infurance  is  vaHd  only  for  the  {hare  of  the  infured  ; 
unlefs  he  was  the  principal  of  the  partnerfliip,  or  had  authority  from  the 
joint  proprietors,  or  that  they  had  ratified  it,  in  due  time,  rebiis  integris.—' 
Stracca  de  ajjcc.gl.  10.  n.  9  &feq. — Roccus  189. — So  adjudged  at  Marfeilles, 

the  9th  of  Augufl  1754. An  infurance  made  for  Roland  only,  was  at  the 

fame  time  declared  there  to  be  good,  he  being  found  alone  interefted  in  the 
goods  (hipped  in  the  name  of  Roland  and  company. — 2  Valin's  Comm.  34. 

5.  If  the  infureds  be  on  board  the  (hip,  or  that  they  be  the  owners  of  her, 
though  they  do  declare  that  they  infure  the  whole,  yet  (hall  they  be  obliged 
to  run  one  tenth  part  of  the  rifque. — Or  din.  of  France. 

6.  In  cafe  it  be  not  clearly  expreffed  in  the  policy  that  the  parties 
infured  have  not  infured  the  full  and  entire  worth  of  the  goods  infured  ;  the 
tenth  part  of  them  (hall  always  remain  to  their  account  and  hazard ;  and  the 
infurers,  upon  any  accidental  lofs  or  damage,  fhall  be  obliged  to  indemnify 
them  no  further  than  in  nine  tenths. — Ordin  of  Konigfi. 

7.  If  the  infurance  fhall  be  made  upon  the  fhip,  tackle,  apparel,  and 
charges  till  her  failing  from  port,  the  owner  of  her  is  to  run  the  rifque  of  the 
fifth  part  of  the  value :  and  the  parties  (hall  not  by  an  agreement,  nor  in 
any  other  manner,  alter  this  ordinance,  fmce,  although  they  renounce  it,  and 
would  go  contrary  to  it,  the  infurance  fliall  be  null,  and  of  no  effefl,  in 
refpeft  of  what  it  (hall  exceed. — Ordin.  of  Bilb. 

8.  No  affurance  (hall  be  made  if  the  name  of  the  perfon  that  caufes  the 
fame  to  be  done  is  not  clearly  and  exprefsly  mentioned  in  the  policy,  before 
any  aflurer  underwrites  it ;  nor  (hall  a  blank  fpace  be  left  in  the  policies,  to 
fill  up  the  name ;  for,  in  that  cafe,  the  fame  fhall  not  be  valid,  nor  the 
affurance  of  any  effeft. — Ordin.  of  Genoa. 

9.  See  Prelim.  Difc.  32,  57.  Abandonment,  Accident,  Agent,  Bankrupt, 
Blank,  Bottomry,  Claim,  Concealment,  Damage,  Date,  Double- Infurance, 
FaBor,  Fraud,  Fire,  Goods,  Infurance,  Infurer,  Intelligence,  Intereft,  Lofs, 
Maftcr,  Name,  Notice,  Order,  Policy,  Proof,  Reinfurance,  Trufi  and  Truftec, 
Valuation,  Wager, 

INSURER. 

I.  TTAVING  already  communicated,  in  the  Preliminary  Difcourfe,  divers 
-*-  A  neceffary  and  interefting  particulars  with  regard  to  infurers,  it  is  the 
lefs  rcquifite  to  enlarge  concerning  them  in  this  place. 

2.     As  there  are,  in  England,  but  very  few  exprefs  laws  and  regulations 
concerning  infurance,  nor  any  diftinft  court,  commiffioncrs,  or  other  perfons, 

appointed 


I      N       S      U      R      E       R.  205. 

appointed  particularly  (as  in  other  countries)  for  the  decillon  and  adjuflment 
of  loffes,  averages,  falvages,  recaptures,  and  the  almofl  infinite  variety  of 
matters  and  differences  that  arife  therefrom ;  the  only  refort  in  cafes  of 
difpute  being  to  our  common  law  courts,  with  enormous  expence.  trouble, 
and  uncertainty  -.  it  is  the  more  needful  for  an  infurer  to  be  well  acquainted 
with  commercial  and  maritime  affairs  in  general,  and  the  doclrines,  laws, 
ufages,  and  praftice,  concerning  them,  as  well  abroad  as  at  home  ;  fince  all 
thofe  various,  and  fometimes  intricate  tranfaftions,  accounts,  documents,  &c. 
which  occur  amongfl  merchants,  mariners,  and  other  perfons  in  the  courfe  of 
foreign  traffick  and  events,  may  occafionally  come  under  his  cognizance, 
efpecially  in  time  of  war,  and  require  the  exercife  of  a  fuitable  judgment 
upon  them  ;  which  if  he  is  unable  to  make  for  himfelf,  he  mud  neceffarily 
be  fubjeft  to,  and  his  fortune  chiefly  depend  upon  the  deceit,  impofition, 
and  fraud,  or  at  leaft  the  ignorance  of  many  of  the  perfons  he  has  to  deal 
with. — All  this  has  been  amply  fet  forth,  and  confirmed  by  fundry  recent 
and  remarkable  inflances,  in  the  Preliminary  Difcourfe  ;  as  alfo  the  great 
illufion  and  danger,  to  an  infurer,  of  following  mej-e  example,  which  is  too 
much  the  cafe  with  the  generality  of  underwriters  of  the  city  of  London  ; 
amongll  whom,  neverthelefs,  there  are  always  feveral  gentlemen  of  great 
knowledge,  experience,  and  ability,  as  well  as  of  the  mofl  fl.ri6l  honour, 
and  exemplary  liberality. 

3.  An  infurer  ought  to  be  conRantly  calling  about  for  the  earlieft,  the 
beft,  and  the  moft  circuniflantial  intelligence  : — he  ought  to  have  a  quick 
perception  of  the  circumftances  of  the  rifque,  and  be  able  to  reafon  well  and 
infl:antly  thereupon,  in  order  to  guard  againft  concealments  and  mifrepre- 
fentations  ;  as  alfo  fome  power  of  refolution  to  withftand  temptations  and 
importunities ;  fince  it  is  far  more  material  to  him  to  regard  the  quality  than 
the  quantity  of  the  rifques  which  he  undertakes. 

4.  Insurers,  who  do  not  underwrite  without  circumfpedion,  will 
prudently  inform  themfdves  of  every  thing,  that  they  may  not  be  injured : 
fuch  whofe  judgment  is  found,  duly  weighing  all  circumfiances,  as  well  with 
refpeft  to  the  thing  infured,  as  to  the  perfons  infuring,  the  condition  and 
well-ftoring  of  the  fhips,  the  voyage,  &c.  may,  on  thefe  confiderations, 
underwrite  at  lower  premiums  than  ufual,  and  thereby  may  incite  others  to 
fit  out  their  veffels  in  the  fame  good  condition  ;  by  which  means  the  general 
good  is  advanced  and  fupported  :  whereas  thofe  who  underwrite  without 
diflinftion,  or  weighing  of  things,  expofe  themfelves  and  others  to  ruin. 

5.  The  ufual  way  with  confiderate  infurers,  when  they  write  off  profit 
upon  infurance  account,  is,  to  leave,  bcfides  xht  premiums  not  run  off,  a  fum 

at  guefs,  fufficient  to  anfwer  what   demands  remain  unfettled. And,    it  is 

indifpenfably  requifite,  as  well  for  the  honour  and  reputation  of  the  infurer, 
as  to  prevent  inconvenicncy  to  the  infured,  that  every  fair  demand  be 
adjufled  readily  and  generoufly. 

6.    U 


2()G        INTELLIGENCE. 

6.  Lv  cafe  an  inrurery^i/j,  if  the  aifignees  cannot,  or  ought  not  to  refund 
the  full  premiums,  it  feems  equitable  that  the  inlured  fliould  be  admitted 
an  equal  creditor  with  others,  for  his  premiums  on  rifques  itiil  depending, 
and  accordingly  fliare  pro  rata  of  wliatever  the  bankrupt's  eftate  produces: 
moreover,  it  feems  clear  that  for  thofe  lofles  wliich  were  known  at  the  place 
where  tlie  infured  lived,  previous  to  the  infurer's  failure  being  public,  he  ought 
to  be  admitted  as  a  creditor  of  the  infurer's  eftate,  whether  the  lofs  be  total, 
or  partial,  and  his  affairs  fooner  or  later  adjufted,  and  regulated. 

7.  An  infurer  in  a  foreign  country,  if  he  comes  into  England,  may  be 
fued  for  a  lofs. 

8.  The  infurer  is  not  always  in  the  place  of  the  infured;  he  is  only 
guarantee  to  him  for  the  damage  which  may  happen  to  the  thing  infured. — 

2  Valin's  Comm.  104. In  cafe  of  regular  aJfandonment,  the  infurer  is  in  the 

place  of  the  infured,  and  becomes  pofleffed  of  all  his  rights  with  regard  to 
die  effefis  infured. — 3id.  143. 

g.  Bv  Stat,  11  Geo.  1.  c.  30.  f.  44. — "Wlicn  any  veflel  or  merchandifcs 
{hall  be  infured,  a  policy  duly  flamped  (hall  be  ilfued  or  made  out  within 
three  daj's  at  furtheft ;  and  the  infurer  negletiing  to  make  out  fuch  policy 
fliall  forfeit  tool. ;  and  all  promijjoiy  notes  for  afiurances  of  ihips  or  merchan- 
difcs are  declared  void. 

10.  By  Stat,  ig  Geo.  2-  c.  37.  f.  4. — Reinfurance  is  prohibited,  unlefs  the 

infurer  be  infolveut,  become  a  bankrupt,  or  die. In  France,  an  infurer  may 

caufe  himfelf  to  be  reinfured  by  others,  upon  the  eflfetls  or  intereft  he  hath 
infured. 

11.  No  infurer  fiiall  be  allowed  to  infure  above  2000  rix-dollars,  on  his 
own  account,  on  any  (hip  or  velfel,  or  it's  cargo,  or  on  both  jointly  or  fepa- 
rately,  without  fpeciaJ  licence  of  the  infurance-ciuimber,  on  forfeiture  of  the 
premium,  and  annulling  the  infurance,  with  regard  to  die  excefs  of  the  fum 
mentioned. — Ordin.  of  Konigfh. 

12.  See  Prelim.  Difc.  10,  1 1,  22,  23,  27,  34,  51,  57.  Abandonment,  Adjuft- 
meiit.  Bail,  Bankrupf,  Broker,  Conwie.ncement ,  Company,  Concealment,  Damage, 
Fraud,   Infurance,   Infured,  InleUigence,   Partnerfiip,   Reinfurance,  Stamps. 

INSURRECTION. 

Sr.E    Africa,   Fire. 

INTELLIGENCE. 

1.  ''  I  "^  O  every  perfon  who  may  be  concerned  in  commercial  affairs,  and 
-■-    efpecially  to  an  infurer,  the  conflant  readv  means  gf  obtaining,  and  an 

acutenefs 


INTELLIGENCE.  297 

acutenefs  of  perceiving,  all  the  circumflances  of  intelligence  in  a^^'  wife 
relative  thereto,  immediately  as  they  occur  from  abroad  or  at  home,  i^ 
of  the  greatefl  utility  and  importance ; — -for  he  is,  otherwife,  every 
moment  liable  to  deception  and  mifinformation,  and  his   fortune  fubjecl  to 

much  worfe   than  mere  chance,  even  to  certain  lofs. How  often  does  it 

happen  with  an  underwriter,  and  fometimes  very  foon  after  his  having 
fubfcribed  a  policy,  to  exclaim,  "  If  I  had  known,  or  been  informed  of  fuch 
or  fuch  a  particular  circumftance,  I  would  not  have  touched  it.'"'^ — More  need 
not  be  faid  to  (hew  that  intelligence,  the  molt  fpeedy  and  circumdantial 
information,  is  indifpenfably  necelfary  to  ah  infurer ;  and  yet  after  all,  and 
with  the  keenefl  penetration  and  judgment,  it  will  rarely  happen  that  he  is  on 
an  equal  footing,  as  he  ought  to  be,  with  the  infured:  for  when  a  perfon  has 
a  confiderable  property  at  fea,  which  he  has  by  negleft,  or  more  probably 
with  defign  to  fave  the  premium,  omitted  to  infure  in  due  time,  the  greater 
the  danger  is  become,  and  the  more  his  fear  operates,  perhaps  upon  the 
higheft  probability  of  an  aftual  lofs  having  happened,  the  lefs  is  he  able  to 
withftand  the  temptation  to  be  guilty  of  concealment,  and  even  mifreprefenta- 
tion,  of  fome  one  or  more  very  material  circumflances,  contained  in  fome  letter, 
or  verbal  information  ;  the  fair  difclofure  of  which  would  have  either  entirely 
prevented  the  infurance  from  being  obtained  at  all,  or  not  without  a  much  larger 
premium  than  was  given: — and  in  the  courfe  of  my  own  experience  only,  I 
have  paid,  and  feen  paid  by  others,  many  total  lolfes,  and  very  many  and  heavy 
averages,  which  might  eafily  have  been  perceived,  at  the  time  of  underwriting 
the  policy,  to  be  certain  and  inevitable,  had  fome  fuch  fingle  circumftance  only 
as  hath  been  fuggefted,  aftually  then  known  to  the  infured,  been  communicated 

to  the  infurer. The  culpability  is  the  fame  on  the  part  of  the  infurer,  who 

underwrites  upon  a  fliip  as  on  her  voyage,  which /z^  knows  to  be  in  a  particular 
fituation,  or  circumft:ances  of  fafety,  unknown  to  the  inhired,  or  which  the 
Underwriter  privately  knows  to  be  arrived  : — Lord  Mansfield  faid,  that  in  fuch 
cafe,  "  an  aftion  would  lie  to  recover  the  premium  ;  for  good  faith  forbids 
either  party,  by  concealing  what  he  knows,  to  draw  the  other  into  a  bargain, 
from  his  ignorance  of  that  faft,  and  his  believing  the  contrary. " — Carter 
V.  Boehm. — Bynkcrjhoek,  quatfl.  jur,  pHv.   1.  4.    c.  26. 

2.  Forasmuch  as  when  an  infufance  is  made  after  the  lofs  of  a  fliip,  it  is 
apprehended  that  the  affured  knew  it  at  the  time  of  making  the  infurance ; 
we  ordain,  that  if  it  fhall  have  happened  in  a  part  from  whence  the  aftbred 
might  have  learnt  it  by  land,  at -the  rate  of  rt  league  per  hour,  in  fuch  cafe  the 
infurance  (hall  be  void,  and  the  infurers  free,  returning  the  premium  they 
received,  but  retaining  one  half  per  cent,  and  if  the  infurance  was  on  one 
fhip,  they  fhall  not  be  obliged  to  run  it  oii  another. — Or  dm.  of  Spain. 

3.  It  fliall  be  looked  upon  that  in  all  likelihood  fuch  advice  was  received, 
if  the  alTurance  was  concluded  within  fuch  a  fpace  of  time,  that  in  the  mean 
while  an  account  could  come  from  the  place  where  the  accident  happened, 
to  the  place  Avhere  the  alfurance  was  made,  accounting  txco  miles  to  an  hour; 

4  D  but 


2gS  INTELLIGENCE. 

but  if  the  fame  happened  at  a  diflance  on  the  fea,  and  that  confequently  die 
advice  mufl;  come  by  fea,  before  it  could  be  known  afhore,  then  the  time  is 
to  be  calculated  in  the  above-mentioned  manner,  from  the  place  where  the 
account  firft  came  to. — Ordin.  oj  Genoa. 

4.  When  fliip  and  goods  have  been  funk,  plundered,  or  fpoiled  fo  long 
ago,  that  the  knowledge. thereof  could  have  reached  the  perfon  that  makes 
the  afllirance,  either  by  fea  or  land  (reckoning  three  miles  to  two  hours  time) 
then  fuch  affurance  fhall  be  void  and  of  no  effetl ;  and  in  that  cafe,  the 
affured  is  fuppofed  to  have  had,  or  might  have  had,  an  account  of  the  lofs 
and  misfortune,  without  any  proof  to  the  contrary  being  required,  unlefs 
the  allured  made  the  adurance  upon  good  or  bad  advices,  in  which  cafe  the 
affurance  fliall  be  efteemed  valid,  if  the  aflurer  cannot  make  it  appear  that  the 
affured  did  know  already  of  the  damage  or  lofs,  before  he  made  the  allurance, 
and  the  affured  will  clear  himfelf  thereof  upon  oath. — Ordin.  of  Middlcb. 

5.  The  time  is  to  be  calculated  at  a  medium  between  the  places,  and  the 
diflance  thereof,  whether  by  land  or  water,  to  be  reckoned  at  three  miles  of 
fifteen  to  a  degree  for  two  hours :  and  if  according  to  fuch  calculation  it 
could  have  come  to  the  knowledge  of  the  affured  within  the  time,    then  the 

aflurance  is  to  be  of  no  value. Unlefs  the   affurance  was  exprefsly  made 

upon  good  or  bad  tidings  ;  and  in  that  cafe  the  fame  fliall  be  valid,  notwith- 
ilanding  the  time  is  elapfed. — Ordin.  (f  Roft. 

6.  If  knowledge  thereof  could  have  come  to  the  perfon  who  maketh  the 
infurance,  either  by  fea,  or  by  land,  reckoning  three  miles  to  two  hours,  in 
fuch  cafe  the  infurance  fliall  be  held  of  no  value,  except  the  infured,  and  alfo 
thofe  who  procured  the  infurance  for  him,  declare  upon  oath  that  they 
were  ignorant  of  the  damage  and  lofs  at  the  making  of  the  infurance. — 
Ordin.  of  Anifl. 

7.  It  fliall  be  prefumed  that  the  infured  knew  of  the  lofs,  and  the  infurer 
of  the  arrival,  if  the  news  thereof  could  have  been  brought  from  the  place  of 
the  lofs,  or  of  the  arrival,  fmce  it  happened,  reckoning  at  the  rate  of  a  league 

and  a  half  in  an  hour,  exclufive  of  other  proofs  that  maybe   alleged. 

If  however  the  infurance  be  made  on  good  or  bad  news,  it  fhall  fubfift,  except 
it  fhall  be  proved  exclufive  of  the  allotted  time  of  a  league  and  a  half  in  an 
hour,  as  above,  that  the  infured  knew  the  lofs,  and  the  infurer  the  arrival  of 

the  vefl'cl,  before   the  underwriting  of  the  policy. The   infured,  if  it  be 

proved  againfl  him,  fhall  repay  to  the  infurer  what  he  may  have  received, 
and  double  premium.  And  if  proof  be  made  againfl  the  infurer,  he  fhall 
repay  the  premium,  and  twice  that  fum  to  the  infured. — Ordin.  of  France. 

8.  Evr.  RY  body  is  always  at  liberty,  to  caufe  himfelf  to  be  affured,  at  the 
time  and  in  the  manner  he  finds  mofl  convenient :  but  he  is  obliged  to 
acquaint  the  alfurers  faithfully  with  the  advices  he  has  concerning  the  fhip, 

and 


INTENDMENT,   INTENT,   INTENTION.  agg 

and  to  infcrt  the  fame  in  the  policy,  whether  and  how  long  the  fhip  iias  been 
departed  from  the  place  where  it  took  in  it's  loading,  or  whether  it  (lill 
remains  there,  or  at  what  other  place  elfe  it  lies :  but  if  no  notice  is  taken 
thereof  in  the  policy,  then  it  is  to  be  looked  upon  as  granted,  that  the  fhip 
was  aftually  flill  at  her  loading  place,  according  to  the  freflieft  advices  and 
accounts,  which  the  alFured  knew,  and  had,  or  at  leaft  could  have,  received 
at  the  time  of  making  the  affurance  : — but  if  at  that  time,  the  fhip  was  already 
departed,  or  had  been  on  her  paflage  above  the  ufual  time,  and  he  that  made 
the  affurance  was  acquainted  with  it,  but  took  no  notice  thereof,  then  the 
affurance  is  of  no  value,  but  the  aflurer  is  entitled  to  keep  the  whole  premium. 

If  any  one  wants  to  make  an  affurance  before-hand  on  the  voyage  to  be 

hereafter  undertaken  by  a  fhip,  that  is  not  arrived  yet,  he  mufl  exprefs  fuch 
circumflance  in  the  policy. — Ordin.  of  Hamb. 

9.  Insurances  may  be  made  on  fhips,  effefts,  and  merchandife  periflied, 
flolen,  or  damaged,  even  after  the  lofs,  robbery,  or  damage  ;  but  if  the  fhip, 
effects,  or  merchandife,  fhall  have  perifhed,  been  flolen,  or  damaged,  a  long 
time  before  that  in  which  the  infurance  was  made  (whether  by  fea,  or  land, 
making  the  account  by  land  of  a  league  per  hour,  night  and  day)  the  infu- 
rance fhall  be  held  as  null,  without  liberty  of  hearing  it  in  judgment,  or 
admitting  any  proof  which  the  aflurer  may  want  to  offer,  that  he  had  no 
advice,  good  or  bad,  unlefs  it  be  cxpreffed  in  the  policy  that  the  infurance 
is  made  upon  bad  or  good  advice  ;  for  then  it  fliall  be  valid,  if  the  affurer 
cannot  prove  (by  the  means  permitted  by  law)  to  the  allured,  that  he  knew 
of  the  lofs,  robbery,  or  damage,  before  making  the  infurance. — Ordin.  ofBilb. 

10.  Remark. — Intelligence  is  of  much  greater  confequence  in  time  of 
war  than  in  peace  ;  but  I  apprehend  that,  during  the  former,  the  calculation 
of  miles  and  hours,  as  direcled  by  the  ordinances  above  quoted,  would 
frequently  prove  fallacious,  on  account  of  the  various  caufes  of  detention  and 
delay  which  all  fliips  are  then  particularly  liable  to,  befides  winds  and  weather; 
fo  that  innocent  infureds  would  often  be  expofed  to  a  nullity  of  infurance. 

11.  See  Broker,  Concealment,  Date,  Evidence,  Fraud,  Infurance,  Infured, 
Infurer,  Notice,  Out-Ports,  Rfque,  Seafon,  Ship  or  Ships,  Valuation,  War. 


INTENDMENT,    INTENT,    INTENTION. 

1.  "INTENDMENT  of  law,  intelledus  legis,  means  the  underflanding, 
-*-  intention,  and  true  meaning  of  law  ; — -the  judges  ought  to  judge  accord- 
ing to  the  common  intendment  of  law. — Co.  Litt.  78. The  law  prefumes 

that  every  one  will  aft  for  his  beff  advantage;  and  therefore  credits  the  party  in 

whatfoever  is  to  his  own   prejudice. — FincKs  Law,  lo.   Max.  53. When 

one   word  may  have  a  double    intendment,  one   according  to   the  law,  and 
another  againft  the  law,  that  intendment  fhall  be  taken  which  is  according 

to 


300  INTEREST. 

to  the  law ;   and  this  by  a  reafonable  intendment. — 3  Bulf.  306".    Mich.    1  Car, 

B.   R.   Yelv.  50.    Game  v.  Harvey. What  mufi:  neceflarily  be  underjloud 

makes  a  part  of  the  policy,  as  much  as  what  is  exprelFed  : — "  icieniia  utrinque 
par  pares  contrahentes  facit." 

2.  The  words  of  deeds  fhall  be  conftrued  according  to  the  intent  of  tlie 
parties,  and   not  oiherwife  : — 'the  intent  fhall  be  deflroyed  where  it  does  not 

agree  with  the  law. — PL  C.   160,   162.  b. In  every  agreement  the  intent 

is   the   chief  thing   to   be   confidered. — Ibid.    290. Common   ufage  and 

reputation  frequently   governs  the  matter,  and  dire61:s  the   intention  of  the 

parties. — Savil,  124. The  aft  of  any  party  in  a  policv  of  infurance  is   not 

to  operate  beyond  his  intention. — Roccus,  164. 

3.  See  Capture,  Commodity,  Cancealment,  Conjlruclion,  ContraEl,  Convoy, 
Cii/iom,  Deviation,  Fire,  Fraud,  Privateer,  Policy,   Return,  Ufage. 


INTEREST. 

1.  'TT  T  HE  N  no  valuation  is  inferted  in  the  policy,  it  is  the  coft  of  the 

»  ^      effefts  with  all  charges  thereupon,  together  with  the  premium  of 

infurance,  and  fuch  other  charges,  and  deduftions,   as  niufl  unavoidably  be 

paid  and  allowed  by  the  infured,  that  makes  the  amount  or  value  of  what  is 

called  the  interefl. ^I   will    illuflrate  this,    1.   by  exhibiting  an  erroneous 

mode  of  calculation,  which  is  far  from  being  uncommon ;    and  2.  by  ftating 
the  true  method. 

io  omit   ::'. 

..a* -The  learned  Langenbfck,    in    his    Annotations  on  iiifurances,   page    214,- gives  the 
following  regulation   of  a  fhip's  lofs : — viz. — the  coft  of  200   butts,   63  halves,   and    15 
quarters  of  currants,  was  computed  to  be  24,438   ducats,  which  at  87  groot,  with  16  per 
cent,  agio^  is.  ---------         Marks  77,074     ^ 

Premium  of  infurance  and  brokerage  iGiVper  cent.     -         -         -         -  12,572   12 

Reinjurance  on  ditto,  at  ditto       -         -         -         -         -         -         -         -  2, 05 10 

M.  91,698     o 


In  which  calculation  the  word   rcinfurance  is  certainly    ufed  in  a  wrong  fenfe,    as  the 
meaning  can  only  be,  that  infurance  might  be  made  as  well  on  the  premium,  as  principal 

coft  :•: -?nd,  it  is  evident  by.  the  preceding  regulation  that  the  infured  ftill  fell  fliort  (in 

cafettf  a  lofs)  for  the  uninfurcd  premium  of  2,051  marks:  the  truthof  which  the  following 
inftance  will  prove  : — viz. — 

3.  V  :At  a  premium  of  10  per  cent,  the  account  would  ftand  thus ; 
£  100  at  :io, per  cent.-the  premium  is  Z' 10        on  vo      -         -        -         is-ri^' 
P^  >j^:q -jliiiJibjiJ  .nolj-T        is  ^        on  twt     -        -        -         is-^W,   &c.  &c. 

on     1'        ..  .      -      V-         -         is         -.'0 

Which  infinite  feries,  fummed  up  by  algebraic  rules,  will    make  exaftly    115^   percent, 
■when  the.  premium  is  ten  per  cent,  apd  the  infured  defires  to  be  zi'holiy  covered  from  any 

lofs ; 


INTEREST.  ^oi 

iofs : — but  common  arithmetic  will  folve  the  propofition  in  the  following  manner,  viz. 
h'  for  lool.  infured,  you  receive  only  go),  it  is  for  the  value  of  90I.  that  you  pay  lol. 
premium:  therefore  as  90I.  is  to  lol.  fo  is  lool.  to  ill.  i:  or,  if  to  recover  gol.  without 
Iofs  you  mnft  infure  lool.  then  to  recover  tool,  without  Iofs  you  muft  infure  11  il.  '. — To 
illuftrate  this  dill  further  :  in  the  above-mentioned  cafe  cited  by  Langenbeck,  the  premium 
of  16I.  tV  was  paid  on  the  worth  of  100  marks  of  currants;  therefore  you  only  intrinfically 
receive  for  100  marks  infured  83  H,  becaufe  you  pay  161%  premium  ;  and  confequently 
for  every  83  H  fliould  infure  100  marks;  and,  form.  77.074  4,  as  above,  m.  92,097  li 
fliould  be  infured  (and  not  merely  91,698,  as  erroneoufly  calculated  there)  in  order  to 
receive  clear  m.  77,074  4. — The  queRion,  whether  the  premium  of  a  premium  ought 
to  be  admitted  as  a  part  of  the  value  infured,  ufed  formerly  to  be  warmly  contefled  in 
London  :  but  it  is  allowed  now  to  infure  there  in  full  for  all  premiums  and  other 
dcduftions,  which  is  called  covering  the  intcrefl ;  and  is  performed  by  the  preceding 
operation. 

4.  So  that  whatever  be  the  premium,  together  with  fuch  commiffion, 
brokerage,  and  other  charges  or  deduftions,  as  mud  be  paid  or  allowed  per 
cent,  by  the  afRired,  on  the  effefts  infured,  they  fhould  be  fird  fubflrafted  from 
lOol.  and  then  as  the  remainder  will  require  lOol.  to  be  infured,  fo  will  the 
amount  of  the  prime  cofl  and  charges  of  the  goods,  fliip,  &c.  together  with 
the    coft  of  the  policy,   require  a  proportionable  fum  to  be  infured,  in  order 

that    the   affured's  full  interejl    may  be    covered  : it  follows,  therefore, 

that  whatever  fum,  Jhort  of  fuch  proportionable  fum,  or  full  intereft,  fhould 
be  uninfured,  the  proprietor,  or  infured,  is  to  be  confidered  as  himfelf 
running  the  rifque  of,  or  (according  to  the  common  expreflion)  as  being 
his  own  infurer  of  it ;  and  muft  confequently  bear  his  proportion  of  all  Iofs, 
or  average  which  may  happen  to  the  thing  infured. 

5.  Here  follow  further  illuflrations,  or  calculations  of  the  fum  neceflary 

to  be    infured,  fo  as  to  cover  the  outfct  or  intereft  of  the  adventurer. In 

cafe  of  a  Iofs,  it  was  formerlv  cuflomary  for  the  infurers  to  pay  but  gSl.  for 
every  lOol.  infured,  or  to  have  two  per  cent,  abated  :  this  cuftom  ceafed 
at  the  conclufion  of  the  late  war,  and  the  infurers  ever  fince  pay  according 
to  their  fubfcriptions,  without  abatement :  I  will,  however,  fuppofe  a  com- 
miflion  of  two  per  cent,  to  be  paid  by  the  infured  to  his  agent  or  correfpondent, 
for  recovering  the  Iofs  ; — and  that  it  is  admitted  to  be  confidered  as  a  part 
of  the  intereft: — then 


At  10  per  cent,  premium,  the  infured 

receives  but          -         -         £  ^^ 
15 83 


20 


At  25 £  73 


30 


68 


40     -         -         -         -         -  58 


And   fo  in   proportion  in  the  cafe  of  any  premium. 
In  order  to  ftiew  the  fum  neceflary  to  be  infured,  if  the  adventurer  would 
cover,  or  make  good  his  outfet,  or  firft  adventure,  in  cafe  of  a  Iofs,    let    10 
per  cent,  be  the  fuppofed  premium  on  an  lOol.  adventure  : 

Then,   as  881.  is  to  lool.  fo  is  lool.  to  113I.  12s.  8d.  the  fum  necefTary  to  be  infured 

to  make  good  lool. As  881.  is  to  lool.  fois  lol.  to  ill.  7s.  3d.  the  amount  of  infurance. 

4  E  All 


S&2 


N 


R 


T. 


An  which  is  proved  by  the  following  example,  viz. 
The  fam  to  be  infured       .-------- 

Dedutt  two  per  cent,  commiffion,  or  reckon  98I.  for  lool,      -         -         . 

The  infured  receives,  in  cafe  of  a  lofj  __-»_. 

Deduct  infurance  on  113I.  12s.  8d.  at  10  per  cent.  -         -         .         _ 

Remains  the  firft  cod  of  the  adventure  _.----- 


255 

111     7     3 

^^7     3 

£^100     o     o 


And  fo  as  to  the  refl  of  the  articles,  or  any  other  adventure,  or  premium,  on 

a  fingle  voyage. According  to  this  example,   the  fix  articles  of  premium, 

before  mentioned,  will  be  (hewn  by  the  following  table. 


Prcnuums. 


At  lop.cent. 
20 

40 


Sums  to  be  infured  to 
make  good  lOol.  on 
a  Iingle  voyage. 


£ 
113 

120 

128 

136 

172 


s. 

12 

9 

4 

^9 
1 

8 


d. 
8 

7 
1 

8 

2 

3 


Deduftthein 

u  ranee, 

Dcduft 

two  pci 

cent. 

Remains 

or  p 

emium  on  tlie 

fum 

infured 

£ 

5. 

d. 

£    s. 

d. 

£ 

5. 

ci. 

2 

5 

5 

Ill    7 

3 

1 1 

7 

3 

2 

8 

2 

118    1 

5 

18 

1 

5 

2 

11 

3 

125  12 

10 

25 

12 

10 

2 

M 

9 

134   4 

1 1 

34 

4 

11 

2 

18 

10 

144    2 

4 

44 

2 

4 

3 

9 

0 

168  19 

3 

68 

19 

3 

Remains. 


£ 
100 

lOO 

100 
100 
100 
100 


In  this  and  the  following  tables,  there  is  no  regard  had  to  office-charges, 
intereft  of  money,  or  rifque  of  infurers,  as  they  often  vary  according  to- 
the  circumftances :  it  is  alfo  to  be  noted  that  fome  perfons  obtain  their 
infurances  themfelves,  others  employ  faftors  or  agents,  and  pay  them  one- 
fourth,  or  half  per  cent,  on  the  fums  infured,  and  one  or  two  per  cent,  on 
recovering  lofles :  the  office-keeper,  or  broker,  receives  from  the  infured 
ys.  or  lis.  (according  to  the  (lamps)  for  the  policy,  and  half  per  cent, 
upon  fettling  lolfes :  interefl  of  money  is  feldom  chargeable  unlefs  in  the 
cafe  of  long  voyages : — ^but,  whatever  thefe  charges  fhall  really  happen  to 
be,  they  may  be  deducted  upon  any  computation  for  covering  the  interefl:. 

6.  The  foregoing  computation  ffiews  the  amount  of  infurance  on  a 
Jingle  voyage  :  in  the  next  place  will  be  ffiewn  how  it  will  ftand  with  a  voyage 
out  and  home,  or  a  double  voyage,  &c. : — the  voyage  out  is  confidered  as  a 
fmgle  voyage,  which  is  already  explained  in  the  article  of  lo  per  cent, 
premium :  and  as  to  the  voyage  home,  deduft  the  premium  from  98  as 
aforefaid:  then  fay. 

As  the  remainder  is  to  the  premium,  fo  is  the  amount  of  the  firft  infurance,  together 
with  100I7  to  the  infurance  of  the  voyage  home  : — this  infurance  home,  added  to  the 
infurance  out,  makes  up  the  total  infurance  : — as  for  inftance,  the  premium  of  10  per  cent, 
on  look  outfet-,  makes  the  infurance  out  iik  7s.  3d.  j  that,  added  to  looL  makes 
ink  7s.  3d.;  tlien,  to  find  the  infurance  home  at  10  per  cent,  premium,  fay, — as  88k  is 
to  lok;  fo  is  111k  7s.  3d.  to  12k  13s.  id.:  then  add  the  12k  13s.  id.  infurance  home, 
to  the  Ilk  7s.  3d.  infurance  out.  it  makes  24k  os.  4d.  total  infurance,  to  make  good  100k 
out  and  home  (as  in  the  following  table) ;  and  the  fum  neceflary  to  be  infured  home  wilk 
according  to  the  foregoing  example,  amount  to  126I.  los.  iid. The  premium  of  40- 
pcr  cent,  which  is  the  highefl:  premium  mentioned,  makes  the  infurance  out  681.  19s.  3d. 
on   look  outfet;    and  tl^.c  like  premium  of  40I.  per  cent,   home,  makes  the  infurance 

116k 


N      T      E      R 


303 


t 


116I,  10s.  6d.  as  is  demonftrable  from  the  fame  principles : — for  as  58I.   is  to   40I.   fo   is 
168I.  19s.  3d.  to  n61.  10s.  6d. : — then  add  the  infurance  out  and  home,   it  will  make 
185I.  9s.  9d.  total  infurance  (as  in  the  following  table)  to  make  good  lool.  in  cafe  of  a  lofs : 
— which  is  proved  by  the  following  example  ;  viz. 
As  58I.  is  to  looI.  fo  is  168I.  19s.  3d.  to  the  fum  neceffary  to   be  infured 

home,  to  make  good  lool.  for  the  firft  outfet         -         -         -         .         £^291     6     4 
Deduft  tw©  per  cent.  commifTion  -         -         -         -         -         -  5167 

The  infured  receives  in  cafe  of  a  lofs         --__.« 
Deduft  infurance  home  on  29  il.  6s.  4d.  at  40  per  cent.       -        -        - 


Deduft  alfo  infurance  out 
Remains  the  coft  of  the  firft  outfet 


And  fo  as  to  any  other  adventure,  or  premium,  on  a  double  voyage,  as  may 
be  feen  from  the  following  table,  viz. 

The  amount  of  infurance  to  make  good  lool.  out  and  home: 


285 

9 

9 

116 

10 

6 

168 

19 

3 

68 

19 

3 

£100 

0 

0 

Premiums  out,  and  the 

Out 

Home 

Total 

fame  home. 

£ 

5. 

d. 

£   s. 

d. 

£   ^-   ^• 

At  10  per  cent. 

11 

7 

3 

12     13 

1 

24    0   4 

^5 

18 

1 

5 

21        6 

9 

39     8     2 

20 

25 

12 

10 

32     4 

4 

57    17     2 

25 

34 

4 

11 

45   19 

5 

80     4     4 

3" 

44 

2 

4 

63   11 

7 

107   13    11 

40 

68 

19 

3 

116  10 

6 

185     9     9 

7.     I  SHALL  now  ftate  the  difference  between  convoys  and  no  convoys,  in 
'an  inftance  o^  di  treble  voyage  ;    the  rotation  being  from  England  to  Africa, 

from  thence  to  America,    and  then  home. Infurance   from  England  to 

Africa  may  be  done  in  time  of  war,  at  about  7  per  cent,  with  good  convoy, 
and  not  under  15  per  cent,  without  convoy ;  and  the  voyage  may  be 
performed  in  forty  to  fifty  days  :  infurance  from  Africa  to  America  will  be 
about  6  percent,  with  fuch  convoy,  and  18  per  cent,  without  convoy  ;  and 
this  voyage  may  be  performed  in  forty  to  fifty  days :  the  infurance  from 
America  to  Great-Britain,  with  good  convoy,  will  be  at  about  10  per  cent, 
and  without  convoy  at  about  25  per  cent,  and  this  voyage  may  be  performed 
in  forty  to  fixty  days. — To  fliew  the  amount  of  infurance  at  thefe  rates,  to 
make  good  lOol.  outfet,  throughout  the  whole  rotation,  deduft  the  feveral 
premiums  from  g81.  as  aforefaid  ;  and  add  the  premium  or  premiums  on  the 
firft  and  fecond  voyages  to  lOol. ;  then  fay. 

For  the  Jirjl  voyage, As  gil.  is  to  7I.  fo  is  tool,  to  7I.  13s.  lod. — As  83I.  is  to  15I, 

fo  is  lool.  to  18I.  IS.  5d. 

For  the  fecond  voyage, As  92I.  is  to  61.   fo  is  107I.  13s.  lod.  to  71.  os.  6d. — As  Sol. 

is  to   18I.  fo  is  n81.  IS.  5d.  to  26I.  11s.  4d. 

For  the  third  voyage, As  881.  is  to  lol.   fo  is  114I.  14s.  4d.  to  13I.  os.  8d. — As  73I. 

is  to  25I.  fo  is  144I.  12s.  9d.  to  49I.  10s.  8d. 

The  amount  of  the  whole,  and  the  difference  between  good  convoys  and  no  convovs, 
will  appear  from  the  following  laMc,   viz. 

Fryni 


im 


I      N 


E       R 


T. 


Troni  England  to  Africa  -  - 
P'rom  Africa  to  America  -  - 
From  America  to  Great-Britain 

Total 


The  amonnt  of 

The  amoun 

of 

DifTerencc     in 

infurancc 

wi-.h 

infurancr  w 

th- 

the  indirance 

good  convoy 

oul 

convo) 

per  cent. 

per  cent. 

per  ctriil. 

£  ^■ 

cl. 

£ 

5. 

d. 

£ 

s.    d. 

7   13 

10 

18 

1 

5 

10 

7     7 

7     0 

b 

2b 

1  1 

4 

19 

10   10 

13     0 

8 

49 

10 

8 

36 

66 

10     0 

* 

27   15 

0 

94 

3 

5 

8     5 

- 

- 

£.S% 

2 

8 

- 

3 

^9 

3 

- 

194 

3 

5 

- 

5 

49 

10 

8 

/-iS  ,1 

£Hi 

12 

9 

26  1 1 

4 

—                A  A 

1  9 

9 

- 

44 

- 

£100 

0 

0 

8.  To  find  the  fum  neccflary  to  be  infured  to  make  good,  or  cover  lool. 
outfet,  on  a  treble  voyage,  in  the  cafe  of  25I.  percent,  premium,  from  America 
to  Great-Britain,  and  the  other  premiums  without  convoy,  as  above-men- 
tioned, /ay, 

As  25I.  is  to  lool.  fo  h  49I:  10s. -Sd.  to  198I.  2s.  8d.  ; — or,  as  73I.  is  to  lool.  fo  is 
144I.  12s.  gd.  to  198I.  2S.  8d.;  the  fum  neceffary  to  be  infured  wilhout  convoy;  and  by 
the  fame  rule,  130I.  7s.  2d.  will  be  fufficient  with  convoy. 

This  will  appear  from  the  ^oWo^'i'mg  example : 
The  fum  to  be  infured  .         _         _         .         - 

Deduft    2   per  cent.  commilTion         -         -         -         - 

The  infured  receives  in  cafe  of  lofs     -         -  -         - 

Deduft  infurance  on  198I.  2s.  8d.  at  25  per  cent. 

Dedu6l  infurance  on  the  outfet         -         -         _         _ 
On  the  fccond  voyage  _         _         _         _         _ 

Remains  the  coft  of  the  firft  outfet  _         .         _ 

And  fo  as  to  any  other  adventure,  or  premiums,  on  any  other  treble 
voyage. 

g.  Case. — The  plaintiff  declared  that  on  the  13th  of  February  1758,  he  in- 
fured lofl;  or  not  loft,  at  and  from  Jamaica  to  London,  upon  the  fliip  or  vefiel  the 
Prince  of  Orange,  James  Anderfon,  mafter,  from  and  immediately  following 
her  firft  arrival  in  Jamaica,  until  the  faid  fliip  fliould  be  arrived  at  London, 
and  there  had  moored  at  anchor  twenty-four  hours  in  good  fafety,  &c.  &c. 
at  and  after  the  rate  of  thirty  guineas  per  cent. ;  in  cafe  of  lofs,  the  affured  to 
abate  two  per  cent,  warranted  free  from  average  under  three  pounds  per  cent, 
unlefs  general  or  the  ftiip  fliould  be  ftranded  ;  and  it  was  declared  that  the 
affurance  was  uponjhip  and  freight ;  and  that  the  underwriter  was  to  return 
15I.  if  the  faid  ftiip  departed  with  convoy  for  the  voyage,  and  5I.  per  cent, 
for  convoy  through  the  Windward-Paffage,  or  Gulph  of  Florida,  &c. : — that, 
the  faid  {hip  before  the  making  of  the  policy,  that  is,  on  the  10th  of  December 
1757,  was  in  good  fafety  at  Jamaica  ;  and  that  afterwards  divers  goods  and 
merchandife,  to  the  value  of  io,oool.  were  laden  and  put  on  board  her  to  be 
carried  on  freight ;  and  that  the  plaintiff",  at  the  time  of  loading  the  faid 
goods  and  merchandifes  on  board  the  faid  fliip,  and  from  thence  uqtil  the  lofs 

01 


N      T      E      R      E      S      T:  no^ 


'  of  the  faid  fhip,  &c.  was  interefled  in  the  faid  fliip,  and  in  the  (jiid  freight, 
to  the  value  of  all  the  money  infured  thereon  : — that  the  faid  fhip,  on  the  12th 
of  December  1757,  departed  from  Jamaica  towards  London  3  and  was  with 
the  faid  goods  and  merchandifes,  on  her  faid  voyage,  that  is,  on  the  2d  of 
February  1758,  attacked,  conquered,  and  taken  a  prize  by  the  French  ;  and 
the  defendant  was  required  to  pay  a  lofs  of  98I.  per  cent. :— there  was  another 
count  for  lool.  had  and  received  by  the  defendant  for  the  plaintiff's  ufe. 
Damages    lool. ; — the  defendant    paid    56I.    into  court,   and   pleaded   non 

alfumpfit ;  whereupon  iflue  was  joined. -The  plaintiff,  after  fitting  out  and 

viftualling  the  faid  fliip  at  Waterford,  fent  her  to  Jamaica  to  take  in  her 
cargo,  and  between  the  11th  and  13th  of  February  1758,  caufed  to  be  infured 
by  different  perfons  the  fum  of  i,6ool.  at  and  from  Jamaica  to  London,  upon 
the  faid  fhip  and  freight : — the  fliip  took  in  her  cargo  at  Jamaica,  and  on  the 
2d  of  December  1757,  failed  from  Montego-Bay  in  the  faid  ifland  without 
convoy,  and  on  the  2d  of  February  1758,  was  taken  as  aforefaid  : — about  the 
12th  of  February  1758,  the  fhip  was  retaken  by  a  Britifli  privateer  called  the 
Britannia,  Capt.  Dodfon,  who  became  entitled  to  half  the  net  proceeds ; 
and  the  plaintiff  applied  to  the  recaptor's  agent,  and  defired  he  might  have 
the  direftion  of  felling  the  fhip  and  cargo  for  the  benefit  of  the  concerned, 
but  was  refufed  ;  whereupon  two  brokers  were  mutually  agreed  to  by  all  the 
parties,  to  fell  and  difpofe  of  the  fliip  and  her  "  cargo  : — the  fliip  and  cargo 
were  accordingly  fold  by  public  auftion,  with  the  mutual  confent  of  the 
plaintiff,  infurers,  and  recaptors ;  and  one  half  of  the  net  proceeds  was  paid 
to  the  plaintiff,  and  the  other  half  to  the  recaptor  ;  and  in  the  account 
delivered  by  the  broker,  the  plaintiff  was  allowed  for  the  fliip's  freight 
1,322!.  8s.  6d. ;    and  though  the   plaintiff  hath  declared  for  a  total  lofs,  he 

only  claims  a  partial  or  average  lofs. The  fliip  and  her  cargo  being  thus 

fold  by  public  auftion,  the  plaintiff  delivered  in  all  his  vouchers  to  the 
policy-broker  to  make  up  the  account,  and  ftate  the  lofs  for  the  examination 
of  the   infurers  :  the  account  was  ftated  as  follows  ;  vi'z. 

The  Prince  of  Orange  cofl  at  private  fale  _         _         _         »         ^      £^55°     o     o 

Amount  of  the  outfet  by  the  fhip's  books       ^_pj   ...         -         _         .         .         ^22      2     2 
Premium  of  1,1551.    (the  fum  that  mufl  be  infured  to  cover  the  value  of 
the  fhip  and  her  outfet)  from  London  to  Waterford  at  five  guineas  per 
Cent,  and  policy  -  -  -         -         -         -         -         ^         .*         60173 


I         Provifions  for  fliip's  ufe  at  ditto  -         -         »         «         -      "  • 

OJ  ", 

Dedufl;  freight  from  London  to  Waterford  -         -         •,         i 

Ueduft  return  of  1  ^  per  cent,  for  convoy  on  1,155!.  as  above         - 

4  F  Premium 


£»>132 

19 

5 

1 10 

9 

I 

i>243 

8 

6 

121 

0 

0 

1,122 

8 

6 

28 

17 

6 

£»'093 

11 

0 

3o6  INTEREST. 

Brouglit  over  £"1,093   ^*     ^ 
Premium  on  l.igol.    (which  mu(l  be  infured  to  cover,  1,093!.  11s.    the 
value  of  the  fhip  at  Waterford)    from  Ireland  to  Jamaica  at  fix  guineas 
per  cent,  and  policy        »         -         -         -         -         -         -         -         -  754° 

1,168   15     o 
Dcduft  freight  from  Ireland  to  Jamaica 290   14     o 


Premium  on  1,320!.  (which  muft  be  infured  to  cover  878I.  is.  the  value 
of  the  fhip  at  Jamaica)  from  Jamaica  to  London  at  30  guineas  per 
cent.  _..-------- 


Total  amount  of  the  freight  £^>3^^     ^     ^ 

From  which  deduft  the  portlage  bill,  and  charges  in 

the  river,  which  may  be  about        -        -        -         -42286 

900     o     o 
Premium  of  1,3501.  (to  cover  900I.)  at  30  guineas  per  cent.  425     5     o 


878     1     o 

416    o     6 

£ji294     I     G 


£^'3^5     5     o 


So  that  there  might  be  infured  on  the  Jhip  £1=320     o     o 

And  on  freight i.-35o     "     " 

£2,670     o     o 

Half  the  net  proceeds  of  the  fhip  and  freight £94^  ^  ^      * 

From  which    deduft  half  the  crew's  wages  home         -         -         -         -  138   11     3 


/'801    19    lu 


£2,670  at  98  per  cent.  - 2,616  12     o 

Received        -        -        r 801   19  10 


Lofs   ^^^  1,8  14     3  2        2 


If  2,6701.    lofes    1,814!.;    iool.  will  lofe  67I.   18s.  gd.;  being  the  average  lofs  claimed  by 
the  plaintiff. 

Defendant's    objeElions,— It    is    underftood,    that    the    praftice    amongft 
merchants  is,  to  infure  no  more  on   (hip  and  freight,   than  the  fum  it  will 
require  to  bring  her  on  an  equahty,  whether  (lie  arrives  or  not ;   but  when 
neither  are  valued^  to  afcertain  whether  a  merchant  choofes  to  have  a  profit 
in  view  by  her  arrival,   or  capture,   and  for  which,  when  valued,   he  pays  a 
certain  premium,   jt  feepis  natural,  that  the  infured  means  only  to  be  fecurcd 
and  reinflated  in  his  real  property,    into  which  the  infurers  have  a  right  to 
enquire,  and  to  fee  that  the  account  is  properly  flated;  and  it  mufl  be  owned, 
the  xcear  of  afliip  greatly  reduces  her  value,   which  the  freight  again  anfwers, 
but  with  heavy  charges  :   therefore  fhip  and  freight  are  the  fame  ;    or  if  they 
are' feparated,   it  depends  much  on  fancy  : — wherefore  in  this  cafe  the  owners 
(liould  only  have  infured  as  under,  viz. 
The  value  of  the  fhip  at  Jamaica  being'   -  -         -         -         -         -         -      £^7^     *     o 

Required 


INTEREST.  307 

Brought  over  £"87 8     1     o 
Required   only   infurance  on   1,350!.   on  fhip  and  freight    at  30  guineas 

percent.. -         425     5     o 

1,303     6     o 
If  a  total  lofs  had  happened,    this  1,350!.  fecured  the  owners  at  98!.  per 

cent.    1,323!. 
As  (he  was  taken,  &c.    tliey  received  for  half  fhip  and  freight         -         -         801    19   10 


The  lofs  is  £^501     6     2 


If  1,350!.  lofes  501!.  6s.  2d.;    lool.  lofes  37I.   2s.; — which  the  defendant  offered  to  pay 

the  plaintiff. 

Some  urge  It  to  be  the  cuflom  to  infure  net  freight,  as  well  as  the  value  of 
a  (hip  ;  and  it  is  too  general  a  cuftom,  alfo,  to  miflake  what  that  net  freight 
aflually  is,  or  rather  impoffible  to  calculate  exaftly,  what  a  {hip  and  freight 
will  yield  in  the  middle  of  a  voyage  ;    therefore  it  is  incumbent  on  an  owner 
to  pleafe  himfelf,  and  declare  it  by  a  valuation  of  both ;    but  if  he  does  not 
and  leaves  all  opoi,   it  is  to  be  prefumed  he  means  only  to  fecure  his  real 
property ;  and  infurers  can  never  be  liable  to  pay  the  lofs  on  an  accidental  or 
imaginary  profit,  in  cafe  of  a  total  lofs,  while  the  affured  (in  the  event  of  a 
fafe  arrival,  and  that  by  heavy  charges,  fuch  as  thirty  guineas  to  failors  for 
the  run  home,   his  fuppofed  net  freight,    or  profit,  does  not   yield  to  his 
expeftation)  can  have  recourfe  upon  the  infurers  for  a  return  of  premium,  by 
complaining  of  his  miftake  after  the  fliip's  arrival : — wherefore  all  infurances 
left  open,  not  valued,  are  intended  only  to  fecure  the  real  original  property  : 
but  as  there  are  fa6ls  in  the  prefent  cafe,  let  it  be  fuppofed  the  affured,  or 
owner,  meant  to  make  profit  (which  is  granting  a  contradiflion  on  an  unvalued 
policy)  by  infuring  his  freight  at  a  high  rate  ;   his  claim  for  return  of  premiums 
would  be  founded  on  the  following  ftate,  by  proving  his  intereft  at  the  higheft 
it  now  turns  out  to  be  at  the  end  of  the  voyage. 

Suppofe  2,670!.  had  been  inlured,  without  valuing  the  fhip  and  freight,  and  the  fliip  arrived 
fafe,  the  affured  could  have  demanded  a  return  of  premium  by  flatinghis  account  thus,  viz. 
Amount  of  the  fhip's  freight  -  -  _  . 
Ditto  of  fliip  fold  at         -         -         -         -         - 


Cofl  at  Jamaica      -         -         _         _ 
Premium  on  1,350!.  fhip  and  freight 
Porilagc  bil!  -         .         .         . 


Net  freight  or  profit  to  be  infured  at  '.i86I.   14s.  to  bring  it  horn 
Infurers  deljtors  to  premiums  of  2,670!.  at  30  guineas 


By  infurance  on  £^-?>!S^     o     o 

By  ditto  on  net  freight  at     286   14     o 


1,636   14     o 

Sum  over -infured  ^"^SS     ^     ^ 

The  above  net  freight  at  Jamaica 
Dedufl  colt  of  infurance  on  286!.    14s. 

When  brought  home  to  London  yields 


. 

- 

£1=322 

8 

6 

-           -           - 

/a!ue 

720 

0 

0 

Total ) 

£2,042 

8 

6 

£878     1     0 

425     5     0 

438     8     9 

_ 

^,7A^ 

M 

9 

ig  it  home     - 

£300 

13 

9 

- 

. 

£841 

1 

0 

£"425     5     0 

90     6     3 

5'5 

3 

is 

£325 

9 

9 

- 

- 

£300 

13 

9 

- 

w 

9" 

6 

3 

Ni                M                a 

£210 

7 

6 

N.  B. 


3o8  I      N      T      E      R      E      S      T. 

N.  B.  Inllead  of  adding  the  premium  to  a  fuppofed  profit  on  fliip  and  freight  at  Jamaica, 
ihe  premium  thereof  mull  always  be  deduced,   and  lefs  infured  to  make  it  a  real  value. 

Proof. If  fhc  had  arrived  fafe; — fhe  fold  at,  or  was  worth  -         j^yso     o     o 

Her  freight  turned  out  at  -         -        -         -         -         -         -         -1.32286 


Coft  at  Jamaica        -        -        -         -        -         -  £^7^     ^     o 

Infurance  on  1,6361.  145,  .         _         -         -  515   11     3 

Portlas^e  Bill  -         -         --         -         -         -         438     89 


2,042     8     6 


1,832     1     o 

;£2  10       7        6 


If  fhe  had  been  a  total  lofs  ;^ — 1,636!.  14s.  at  98  per  cent,  would  pay      -      £^fio^   19     9 
Coll  at  Jamaica      ------  ^^878     1     o 

Infurance  premium  -         -         -         -         -         -         515113 


i.393   12 


Net  profit /'210     7     6 

As  fhe  was  taken  and  retaken ; — 1,636!.  145.  at  98  per  cent.     -         -  £1,603   19     9 

By  net  proceeds  of  half  fhip  and  freight         -         -         ^         -         -         -         80119 


10 


1 1 


The  infurers  mud  then  have  paid         -         -         -         -         -         -         -         80119 

Net  proceeds  on  half  fliip  and  freight  -         -        -         -        -  801   19  10 


Coll  at  Jamaica         ------  ^£^878     i 

Ditto  premium  -         -         -         -         -         -  51511 


1,603  ^9     9 


1-393   *2     3 


Net  profit /'2 10     7     6 


As  certainly  every  man  means  his  true  intcrcft.  in  all  his  operations  in  trade, 
tlie  above  ftate  proves  proper  calculations  ;  as  whether  a  fafe  arrival,  a  total 
lofs,  or  capture  and  recapture  had  happened,  the  profit  or  net  freight  turns 
out  equally  the  fame  :  wherefore  in  all  infurances  of  fliip  and  freight,  both  or 
either,  left  general,  and  not  valued,  the  alTured  can  calculate  in  the  above 
manner  for  a  return  oS.  premium  ;  as  alfo  the  infurers  from  paying  too  much. 
— If  the  infurers '  were  to  pay  (refpefting  the  cafe  in  queftion)  on  the 
imaginary  fum  of  2,670!.  the  alfured  would  not  only  gain  8c)61.  13s.  4d.  by 
the  capture  and  recapture,  an  accident,  but  fave  alfo  115I.  6s.  gd.  they 
would   have  loft  had  the  fhip  arrived  fafe ;    without  the   leaft  chance  of  a 

reciprocal  advantage  to  the  infurers  by  any  accident. If  cuftom  is  pleaded 

to  a  contrary  praftice  refpefting  freight,  it  has  no  relation  to  an  infurance  on 
fliip  and  freight ;  becaufe  if  an  high  valuation  is  made  and  infured  on  the  one, 

fo  much  the  lefs  ought  to  be  done  on  the  other. This  caufe  coming  on  to 

be  heard,  and  the  plaintiff's  witnefles  proving,  that  it  was  cuftomary  in  the 
city  of  London  for  an  owner  of  a  fliip  to  cover  his  intereft  both  in  fliip  and 
freight,  by  infuring  fliip  and  freight,  and  the  premium  paid  for  infuring  the 
fame   (the  underwriter  taking  the  premium  in  cafe  the  fliip  arrives  fafe)   the 

jury  gave  a  verdift  for  the  plaintiff. If  the  plaintiff  had  infured  to  the  full 

ftmount  of  his  valuation,  that  is,    2,670!.   the  principle  infifted  upon  by  the 

•defendant. 


INTEREST. 


309 


defendant,  would,  it  feems,  have  been  right ;  for  "  the  defign  of  infuranjce 
is,  not  to  cover  an  imaginary  profit,  but  to  fecure  a  real  intereft," — At 
Guildhall,  May  the  15th,  1759. — Sir  Alex.  Grant,  Bart.  v.  William  Innes. 

10.  Case. — On  a  policy  of  infurance  on  goods,  by  agreement  "valued  at 
600I.  and  the  allured  not  to  be  obliged  to  prove  any  intcrefl :" — -the  Lord 
Chancellor  ordered  the  defendant  to  difcover  what  goods  he  put  On  board; 
for  although  the  defendant  offered  to  renounce  all  interell  to  the  infurers ;  yet 
his  lordfliip  referred  it  to  a  mafler  to  examine  the  value  of  the  goods  favcd, 
and  to  deduft  it  out  of  the  value,  or  fum  of  600I.  at  which  the  goods  were 
valued  by  the  agreement;-^ia  Vcrn.  715.     Mich.   1716. — Le  Pypre  &  Farr.., 

11.  Case. — Mrs.  Strode,  lefTee  of  a  houfe,  infured  the  fame  for  feven  years 
from^?'^,  to  the  value  of  4001. :  her  term  therein  expired  before  the  policy, 
viz.  at  Midfummer  1740 :  on  the  6th  of  January  following,  the  houfe  was  burnt 
down :  on  the  23d  of  February  following,  Mrs.  Strode  ajjigncd,  the  policy  to 
the  plaintiffs,  who  are  the  ground  landlords,  and  now  a  bill  is  brought  againlt 

the  infurance-olhce  for  the  400I. ^Lord  Chancellor  faid,— the  queftion  is, 

whether  by  the  affigmnent  the  plaintiffs  are  entitled  to  recover  the  400I.  ?  and  I 
am  of  opinion,  that  the  party  infured  ought  to  have  a  property  in  the  thing 
infured,  at  the  time  of  the  infurance  made,  and  at  the  time  of  the  lofs  by  fire, 
or  he  cannot  be  relieved.  Mrs.  Strode  had  no  property  at  the  time  of  the 
fire,  confequently  no  lofs  to  her  ;  and  if  fhe  had  no  intereft,  nothing  could 
pafs  to  the  plaintiffs  by  the  affignment : — if  the  infured  was  not  to  have  a 
property  at  the  time  of  the  infurance  or  lofs,  any  one  might  infure  upon 
another's  houfe,  which  might  have  a  bad  tendency  to  burning  houfes : 
infuring  the  thing  from  damage  is  not  the  meaning  of  the  policy,  it  muft 
mean  infuring  Mrs.  Strode  from  damage,  and  flic  has  fuffered  none. — Bill 
difmiffed  without  cofts. — Eafter  1743.  1  Wilfon  to. — Sadler  s  Company  v. 
BadcocL 

12.  By  Stat.  19  Geo.  2.  c.  37. — -All  infurances  on  fliips  or  goods  interejl 
or  no  interejl,  or  without  further  proof  of  interefl  than  the  policy,  are  void  : — ■ 
except  on  private  fhips  of  war : — or  on  effefls  from  any  ports  in  Europe,  or 
America,  in  the  polfelTion  of  the  crowns  of  Spain  and  Portugal. 

13.  By  Stat.  14.  Geo.  3.  c.  48. — No  infurance  fliall  be  made  on  the  life  of 
any  perfon,  or  on  any  other  events  whatfoever,  wherein  the  perfon  or  perfons 
for  whofe  ufe,   benefit,  or  account,  the  policy  is  made,   fliall  have  no  intereft, 

or  by  way   of  gaming  or  wagering : the  name   of  fuch  perfon  mull  be 

inferted  in  the  policy  : and  no  more  fhall   be  recovered  than  the  amount 

or  value  of  the  intereft. 

14.  If  the  infured  fues  for  the  payment  of  the  fum  infured,   above  the 

value  of  his  effcfts  or   intereft,    he   fhall  be  exemplarily  puniflied. We 

forbid  the  making  any  infurance  or  reinfurance  on  goods  or  «ffe6is,  above 

4  G  their 


Sio  I  N  T  £;  R  E  S  T    OF    MONEY. 


o 


their  real  value,  in  one  or  more  policies,  under  the  penalty  orfuch  infurance, 
being  invalid,  and  confifcation  of"  the  goods. — Ordin.  of  France. 

i^.     No  perfon  is  to  prcfume  to  offer  any  thing  to  be  infured   above   the 

legal  and  cohftituted  value. If  any  one,  from  an  eager  defire  of  gain,  (liall 

run  the  rifque  of  infuring  a  fhip  or  goods  to  a  greater  fum  than  their  equitable- 
value,  lYe  (hall  be  feverely  puniftied  according  to  the  circumftances,  the 
infurance  (liall  be  void,  and  the  premium  fall  td'the  infurer ;  but  if  by 
accident,  and  without  any  evil  defign  of  the  party  infured,  the  value  infured 
exceeds  the  ufual  and  equitable  worth  of  the  (hip  or  goods,  the  infurance 
fhall,  indeed,  remain  in  its  full  force  ;  but  the  infurers,  in  cafe  of  lofs  ot 
damage  of  the  goods  infured,  fhall  not  be  bound  to  pay  more  than  their 
aftual  worth,  and  in  proportion  to  the  fum  for  which  they  refpectively  bound 
themfclves ;  likewife  what  overplus  they  received  in  the  premium  on  account 
of  this  abatement,  after  a  deduftion  of  half  per  cent,  they  are  to  return  lo  the 
parties  infuring. — Ordin.  of  Konigjb.  •    •  ■:v<~'f> 

iS.  As  the  borrower,  on  bottomry  or  rc/pondcntia,  were  it  permitted  to 
him  to  make  infurance,  could  not  recover,  in  cafe  of  lofs,  without  proof  of  the 
value  of  his  interefl,  neither  is  the  lender,  who  infurcs,  and  who  reprefents 
him  on  this  occafion,  entitled  to  greater  favour;  nor  is-the  producing  of  the 
bottomry  or  refpondentia  bond  fufhcient,  without  proof  of  the  borrower's 
•interefl;  in  the  fhip,  or  of  the  value  of  the  goods  a6tually  (hipped. — 
2  Valines  Co  mm.  139. 

tiO 

■  -i-'/i' ■  See  Prelim.  Di/c.  ^6.  Abandonment,  Abatement,  Average,  Bargain, 
■Barter,  Bottomry,  Broker,  Capture,  Condemnation,  Court  of  Policies  of  Affurance, 
Declaration,  Douhle-Infurance,  Equitable- Affurance,  FaElor,  Fire,  Fraud, 
Freight,  Goods,  Infiirance,  Infured,  Inter ef  or  no  Interefl,  Lives,  Lofs, 
Market,  Mafer,  Prior -Infurance,  Profit,  Proof,  Property,  Proprietor,  Rifque, 
Ship  or  Ships,  Valuation,  Wager,  Wear  and  Tear. 


INTEREST     OF      M  O  N  E  Y. 

I.     A   Lofs   on   a  policy   of  infurance  having   been  fued  for  at   law,  and 

-^  ^  recovered ;   on  a  difcovery  of  fafts  afterward  made  by  the  anfwer 

to   a  bill   in  equity,  the  money  was  decreed  to  be  repaid    wiUi   cofts    and 

.interefl :    and  the  lord  keeper  (aid, — "  as  to  the  interefl,  I  think  it  would  be 

given  at  common  law,  where  a  man  fues  for,  recovers,  and  receives;  a  grofs 

-fum  of  money  unduly  ;    and  I  fliould  not  fit  here,  were  I  to  fuffer  a  man  to 

receive  a  fum  of  money  and  keep  it,  without  making  any  fatisfatlion  for  the 

detention  of  it : — what  would  the  merchants  of  Lombard-Street  think  of  fuch 

proceeding?" — In  chan.  1758. — Clea'e  and  Sir  Crifp  Gafcoignc. 

2.     Sr.f/.Jntere/i,   Lives. 

INTEREST 


[    311    ] 
INTEREST     OR     NO     IN  TERES  T. 

1,  XT  THEN  an  infurance  on  intereft  or  no  interefl  is  propofcd  (whicli 
VV  fometimes  happens,  notwithftanding  the  under-mentioned  flatutc) 
the  infurers  ought  carefully  to  examine  into  the  motives  that  the  perfons 
infured  may  have  for  thus  infuring ;  for  it  is  extremely  delicate  and  dangerous 
to  underwrite  to  perfons  who  have  any  management,  in  the  voyage,  fmce  they 
may  be  tempted  by  lucre,  in  fome  fhape  or  other  to  lofe  the  fhip.  Were 
it  not  for  the  apprehenfion  of  fuch  bad  confequences,  there  could  be  no 
objeftion  to  allowing  merchants  to  follow  their  own  inclinations,  and  permit- 
ting infurances,  when  they  cannot  otherwife  be  done,  to  be  made  as  a  zuager, 
or  intereft  or  no  intereft :  but  ftill  the  infurers  ought  to  take  care  that  at  the 
time  of  fuch  infurance  there  be  no  bad  news  of  the  fliip  :  or  if  it  is  upon  one 
expeeed  from  diftant  countries,  that  there  be  no  room  to  fufpeft  any 
fraudulent  defign  :  and  upon  the  whole,  it  is  unqueftionably  more  confiftent 
with  prudence,  and  more  conducive  to  the  public  benefit,  to  fubjeft  infurance 
to  fome  limitations,  than  to  grant  a  fanftion  to  it  as  gaming  or  wagering. 

2.  By  Stat.  19  Geo.  2.  c.  37.  f.  1.— No  affurance  fhall  be  made  after  the 
ift  day  of  Auguft  1746,  by  any  perfon  or  bodies  corporate  on  any  fhip 
belonging  to  his  majelly  or  any  of  his  fubje&s,  or  on  any  goods  on  board  any 
fuch  fhip,  intereft  or  no  intereft,  or  without  further  proof  of  intereft  than  the 
policy,  or  by  way  of  gaming  or  wagering,  or  without  benefit  of  falvage  to 

the  afTurer  ;  and  every  fuch  affurance  fhall  be   void. -S.  2.  Affurance  on 

private  fhips  of  war  fitted  out  by  his  majefty's  fubjefts  folely  to  cruife  againft 
his  enemies,  may  be  made  by  or  for  the  owners,  intereft  or  no  intereft,  free 

of   average,     and    without  benefit  of  falvage    to  the  affurer. S.  3.  Any 

merchandifes  or  effe6ls  from  any  ports  in  Europe  or  America,  in  the 
poffeffion  of  the  crowns  of  Spain  or  Portugal,  may  be  affured,  in  fuch 
manner  as  if  this  aft  had  not  been  made. 

w     ■.:>, 

3.  Case. — This  was  an  infurance  on  goods,  by  the  Durfley  galley, 
intereft  or  no  intereft,  at  and  from  Jamaica -to  Briftol  :  in  her  pafl'age  flie 
was  taken  by  a  Spanifh  privateer  and  carried  into  Mores,  a  port  in  Spain, 
kept  eight  days,  and  then  cut  out  by  an  Englifli  fliip :  and  the  plaintiff 
infifhing,  that  this,  though  on  goods,  was  to  be  confidered  as  a  wager  on  the 
bottom  of  the  fliip,  brought  his  aftion  as  upon  a  total  lofs. — The  defendant 
infiiied  that  by  the  ftatutes  13  Geo.  2.  c.  4.  and  17  Geo.  2.  c.  34.  this  ftiip  is 
to  be  reftored  to  the  owners,  paying  falvage  ;  and  confequently  this  is  only 
an  average  lofs  ;  and  the  plaintiff  can  only  recover  upon  a  total  one. — 
But  the  chief  juftice  held  that,  in  this  cafe,  the  plaintiff  ought  to  recover; 
for  this  is  a  wager  upon  a  total  lofs  in  the  voyage,  and  here  has  happened 
one  ;  for  the  being  carried  into  port  and  detained  eight  days  makes  one  : 
and  where  the  policy  is, intereft  or  no  intereft,  the  provifions  of  the  afts  in 
the  cafe  of  valued  policies  cannot  take  place  :    the  aft  does  not  declare  the 

property 


ci2  IRELAND, 


o 


property  is  not  gone  by  fuch  a  capture  ;  but  only  provides  for  reftoring  the 
fliip  to  whom  it  did  and  fliall  be  proved Ao  have  belonged:  he  faid  it  might 
be  otherwife,  where  the  recapture  was  before  the  fhip  was  carried  infra 
praefidia  ;  or  in  the  cafe  of  goods  a6lually  on  board,  and  upon  a  valued 
policy. — Stran.  1250.     19  Geo.  2. — Dean  v.  Dicker. 

4.  MoNS.  Vali7i,  in  his  excellent  and  elaborate  commentaries  on  the  ordi- 
nance of  Louis  xiv.  1681,  publilhed  at  Rochelle  in  1766,  vol.  2.  p.  73.  fays, 
"  in  England,  an  infurance  is  valid  without  regard  to  the  value  of  die  things 
infufed,  and  without  examining  whether  the  goods  be  fliipped  or  not :  the 
exillence  of  the  (hip,  on  occafion  of  which  the  infurance  is  made,  is  alone 
confidered  ;  fo  that  all  is  reduced  to  a  kind  of  wager  whether  the  fhip  (hall 
arrive  or  not;  thus,  in  cafe  of  fafe  arrival,  the  premium  is  gained  witliout 
further  enquiry,  and  on  the  contrary,  if  the  (hip  is  loft,  the  infurer  is  held 
to  pay  the  fum  infured,  whether  the  aftured  had  or  had  not  intereft  in  the 
ihip  or  cargo  to  the  amount  of  the  infurance. — And  it  is  the  fame  in  Portugal, 
in  cafe  of  ftipulation  "  whether  there  be  or  be  not  effefts  in  the  fhip  to  the 
amount  infured  ;"  fmce  Pereira  de  Cajlro,  decis,  56.  n.  5.  holds  "  that  fucli 
a  flipulation  is  valid,  as  not  being  contrary  to  the  nature  of  the  contraft  of 

infurance." It  is   necefiary    that    Monf   Valin's    countrymen,  who   make 

large  infurances  in  England,  and  perhaps  fometimes  under  the  idea  that  no 
proof  of  the  quantum  of  intereft  is  requifite,  fhould  be  informed  of  his 
miftake,  and  be  referred  to  the  afore-mentioned  ftatute. 

5.  See  Prelim.  Difc.  56.  Adjujlmeyit,  Bargain,  Bottomry,  Capture,  Cruize, 
Fire,  Fraud,  Infufficiency,  Infurance,  Intercji,  Market,  Privateer,  Profit, 
Ranfom,  Seizure,  Ship  or  Ships,   Valuation,  Wager, 


INVASION. 

See  Fire. 

IRELAND. 

1.  OOON  after  the  commencement  of  the  prefent  war  with  our  North- 
^  American  colonies,  an  embargo  or  prohibition  was  laid  in  Ireland 
againft  the  exportation  from  thence  of  provifions,  except  with  licence  and 
giving  bond  to  land  them  in  the  Britifh  dominions :  notwithftanding  which, 
many  cargoes  were  conftantly  fhipped  for  France,  Spain,  &c.  with  falfe 
clearances  as  for  England,  and  were  alfo  infured  in  London  :  fome  of  them 
\vere  taken  and  brought  in  by  the  king's  fhips,  and  others  by  fhips  with 
commiffions  of  marque  ;  but  the  authority  of  the  latter  not  reaching  to  fuch 
Irifti  fhips  and  cargoes,  the  owners  of  the  former  were  obliged  to  indemnify 
the  proprietors  of  the  latter. — Several  perfons  of  confequence  in  Ireland 
complained  heavily  of  the  faid  embargo,  and  denied  the  right  of  the  king, 

or 


IRELAND.  313 

or  even  the  parliament  of  Great-Britain,  to  lay  fuch  prohibitions,  or  indeed 
any  other  reftraints  on  their  trade  :  the  confequence  of  thofe  clamours  was, 
a  repeal  by  flat.  20.  Geo.  3.  of  the  feveral  reftrictions  thereon  which  before 
fubfilled  by  our  navigation  afts,  and  other  fubfequent  ftatutes,  fo  that  Ireland 
now  enjoys  the  freedom  of  commerce  fhe  had  long  wifhed  for. 

2.  By  Stat.  15  Geo.  3.  c  31.  f.  21. — From  the  25th  of  December  1775, 
the  refpeftive  bounties  after  mentioned  fliall  be  allowed  for  every  Britifli- 
built  veflel,  owned  by  the  fubjefts  of  Ireland,  which  fhall  proceed  from  any 
port    in  Ireland   on   the  whale    fifliery  to  the  Greenland    feas,  and  Davis's 

Streights,   under  the   feveral   rules  and  reflriciions  expreffed  in  this   aft. 

S.  23.  The  commiffioners  of  the  cuftoms  for  that  part  of  Great-Britain  where 
fuch  fliips  fliall  arrive,  fliall  caufe  payment  to  be  made  of  the  bounty  or 
premium  of  40s,  per  ton,  for  every  fuch  fhip  as  fhall  proceed  on  the  faid 
fifhery,  from  the  25th  of  December  1775  to  the  25th  of  December  1776; 
and  from  the  25th  of  December  1776  to  the  25th  of  December  1781,  30s. 
perton;  and  from  the  25th  of  December  1781  to  the  25th  of  December  1786, 

20s.  per  ton. S.  24.  Provided  fuch  (hip  fliall  fail  from  the  port  where  fhe 

(hall  be  furveyed,  and  cleared  direftly  on  her  intended  fifhery,  on  or  before 
the  10th  day  of  April  in  every  year,  and  fhall  continue  with  her  crew  in 
the  Greenland  feas,  or  Davis's  Streights,  diligently  endeavouring  to  catch 
whales,  &c.  until  the  lOth  day  of  Auguft,  unlefs  fuch  fliip  fhall  be  laden 
with  the  blubber  and  fins  of  one  whale,  or  fliall  be  forced  by  fome  unavoid- 
able accident  or   necefhty  to  depart  fooner  from  thofe  feas. S.  31.  The 

owners  may  injure  the  bounty. 

3.  See  Prelim.  Difc.  43,  51.  Alteration  of  Policy  Voyage  or  Rijque, 
Colony,  Eajl-India,  Embargo,  Fiflieries,  Greenland,  Out-Ports,  Touching, 
War,  Wool  and  Woollen  Manu/a&ures. 


4H  JETSON 


J- 


JETSON      OR      JETTISON. 

1.  rnr^HE  Lex  Rhodia  de  jaBu,  a  celebrated  maritime  regulation,  has 
I  prevailed  among  all  civilized  nations,  ancient  and  modern.  When 
in  a  ilorm  weighty  goods  of  little  value  are  thrown  over-board  to 
difburden  the  (hip,  the  owners  of  the  remaining  cargo  muft  contribide  to  make 
up  the  lofs.  The  throwing  over-board  weighty  goods  of  little  value,  is 
extremely  beneficial  to  the  owners  of  the  more  precious  goods,  which  by  that 
means  are  preferved  ;  and,  according  to  the  foregoing  doftrine,  thefe  owners 
ought  to  contribute  for  making  up  the  lofs  of  the  goods  thrown  into  the  fea, 
precifely  as  if  there  had  been  a  formal  covenant  to  that  effeft. — 'But  what  if  the 
whole  cargo  be  afterward  loll,  by  which  eventually  there  is  no  benefit  ?  If  loft 
at  fea  in  the  fame  voyage,  the  owner  of  the  goods  thrown  over-board  has 
certainly  no  claim,  becaufe  at  any  rate  he  would  have  loft  his  goods  along  with 
the  reft  of  the  cargo  :  but  as  foon  as  the  cargo  is  laid  upon  land,  the 
obligation  for  retribution  is  purified  ;  the  value  of  the  goods  abandoned  to  the 
fea,  is  or  ought  to  be  in  the  pocket  of  the  owner  ;  and  the  delay  of  payment 
will  not  afford  a  defence  againft  him,  whatever  become  of  the  cargo  after  it 
is  landed. — Ld.  Kaims  Prin.  of  Equ.  116. 

2.  Ships  being  freighted,  and  at  fea,  are  often  fubjeft  to  ftorms  and  other 
accidents,  when,  by  the  ancient  laws  and  cuftoms  of  the  fea,  in  extreme 
neceftity,  the  goods,  wares,  guns,  or  whatfoever  elfe  (hall  be  thought  fit,  may 
in  fuch  extremity  be  flung  overboard :  but  then  the  mafter  ought  to  confult 
with  his  mariners,  who,  if  they  confent  not,  and  yet  the  ftorm  and  danger 
continues,  the  mafter  may,  notwithftanding,  command  what  he  ftiall  think 
proper  to  be  caft  over-board  for  the  common  fafety  of  the  reft. — So  likewife 
goods  coming  from  infecled  towns  or  places  may  be  caft  over-board  ;  and  if 
an  aftion  be  brought  at  common  law,  the  defendant  may  juftify  the  fame  by 
pleading  the  fpecial  matter. — If  there  be  a  fuper-cargo,  a  requeft  ought  to  be 
made  to  him  to  begin  firft  ;  but  if  he  refufes,  the  mariners  may  proceed. — 
Molloy,\i.  2.  c.  6.  f  6.  cites  Leg.  R/wd.  dejafl.  Braclon,  lib.  2.  fo.  41.  b.  n.3, 
49  Edzc.  3.  fo.  15.  Leg.  Ola:  c.  iS. 

Q.     If 


J  E  T  S  O  N     O  R    J  E  T  T  I  S  O  N  515 

3.  If  the  fhip  happens  to  outweather  the  florm,  and  arrives  in  fafety 
at  the  port  of  difcharge,  the  mafler  and  moft  of  the  crew  mud  fwear  that  the 
goods  were  cafl  over-board  for  no  other  caufe,  but  purely  for  the  fafety  of  the 
Ihip  and  lading. — Molloy,  b.  2.  c.  6.  f.  2.     Leg.  Wijbicens.  art.  38,  39. 

4.  King  William  the  Conqueror,  and  Henry  i.  made  and  ratified  this 
law  concerning  goods  caft  over-board  by  marmers  in  a  dorm,  in  imitation  of 
the  ancient  Rhodian  law,  dejaft. — viz.  "Siegojecero  res  tuas  de  navi  ob 
metum  mortis,  de  hoc  non  potes  me  implacitare  ;  nam  licet  alteri  damnum 
inferre  ob  metum  mortis,  quando  periculum  evadere  non  poteft.  Et  fi  de 
hoc  me  mefces,  quod  ob  metum  mortis  nil  fecilfe  de  comefprioraii.  Et  ea 
quae  in  navi  reliant  dividantur  in  communi  fecundum  catalla  ;  &  fi  quis 
jecerit  catalla  extra  navim,  quando  neceffitas  non  exegerit,  ea  reftituat." — 
Molloy,  b.  '1.  c.  6.  f  3.  cites  Leg.  Guild.  1.  &  //.  1.  c.  98.  de  Padis  ad  Legem 
Rhodiam.  Selden  ad  Eadmerum,  &  not(X  &  Jpicilegium,  fo.  18;^.  Weelock  de 
prifc.  Anglorum  legibus,  fo.  167. 

5.  If  goods  fliipped  in  England  are  in  a  tempefl;  thrown  over-board,  in 
order  to  preferve  the  veffel  and  crew,  and  thefe  goods  are  taken  up  and 
preferved  by  another  Englifli  Ihip,  the  owners  bring  trover  ;  it  lies,  becaufe 
delivered  upon  the  land. — -2  Rolls  s  Rep.  498. — Caps  v.  Tooker. 

6.  When  fome  goods  mud  unavoidably  be  thro^'/n  over-bodrd,  the 
mader  ought  to  have  a  particular  regard,  that  fo  far  as  is  polhble  thofe  goods 
may  be  thrown  over,  which  are  of  the  greatejl  zoeigkt,  but  of  the  leajl  value: 
and  in  cafe  any  perlon  on  board  has  in  his  cheds  or  bales  a!>iy  money,  gold, 
filver,  precious  dones,  or  other  goods  of  great  value,  he  fhall  be  obliged  to 
declare  the  fame  betimes  to  the  mader,  before  any  thing  be  flung  over-board, 
or  put  to  the  hazard ;  otherwife  no  further  regard  will  be  had  thereunto  in 
fettling  the  average,  or  alfurance  to  the  charge  of  the  alfurer,  than  only  as  to 
fuch  cheds  or  bales  as  they  outwardly  appear. — Or  din.  of  Antto. 

7.  When  the  captain  or  mader,  after  the  jettifon  has  been  made,  arrives 
at  any  port,  or  other  convenient  place,  he  diall,  in  the  prefence  of  the  faid 
deputed  perfons,  and  the  fecretary  of  the  (hip,  make  diligent  enquiry  of  what 
has  been  flung  over-board  ;  of  which  the  lad  is  to  take  exaft  notice,  and  the 
fame  is  to  be  confirmed  and  verified  by  the  depofitions  of  the  officers  and 
merchants,  or  others  that  were  padengcrs  on  board  of  the  fhip  during  the 
voyage  ;  and  in  want  of  fuch,  by  the  declarations  of  the  officers ;  in  default 
whereof,  every  thing  that  was  thrown  over-board  diall  be  laid  to  the  chai-ge 
of  the  captain  and  mader. — Or  din.  of  Genoa. 

8.  Any  damage  that  may  accrue  to  other  goods,  befides  thofe  flung 
over-board,  or  emptied,  by  means  of  this  jettifon,  fliall  be  deemed  general 
average. — Ordin.  cj  Rott. 

9.     The 


oib  J  E  T  S  O  N     O  R    J  E  T  T  I  S  O  N. 

g.  The  things  belonging  to  the  fhip  the  leaft  ufeful,  the  heavieft,  and  the 
leail  valuable,  fhall  be  the  firll  thrown  over-board,  and  afterwards  the  goods 
between  decks  :  neverthelefs  the  whole  {hall  be  left  to  the  mailer's  choice  with 
the  advice  of  the  crew. — Ordin.  of  France. 

10.  Should  it  happen,  that  a  fiiip,  after  it  has  already  flung  fome  goods 
over-board,  and  by  that  means  faved  herfelf,  or  efcaped  from  an  enemy,  is 
afterwards  in  the  fame  voyage  deftroyed  by  another  unfortunate  accident,  or 
taken;  then  the  goods  that  are  faved  and  preferved  from  this  latter  misfortune^ 
mufl:  likewife  bear  their  fliare  in  the  lofs  of  the  goods  flung  over-board  before  ; 

deducing  however  firfl;  the   charges   and  falvage. When  a    mafl:er  upon 

a  river,  or  going  into  any  harbour,  puts  part  of  his  cargo  on  board  of  hoys  or 
other  fmall  veffels,  in  order  to  lighten  his  fliip,  and  the  fame  come  to  I'ome 
damage  or  are  lofl:,  fuch  lofs  or  damage  is  efl:eemed  equal  to  a  jettifon,  and 

mufl:  be  paid  by  a  general  average. But  if  fuch  a  fliip  fliould  afterwards  be 

lofl:  herfelf,  with  the  remainder  of  the  cargo,  and  the  goods  taken  out  of  her 
on  the  contrary  came  fafe  on  fliore,  thefe  latter  are  not  obliged  to  contribute 

towards  the   damage  fuftained  by  the  lofs   of  the  fhip  and  cargo. When 

goods  are  thrown  over-board,  and  recovered  again  afterwards,  then  the 
damage  they  fuffered  by  the  jettifon,  and  what  was  expended  in  falvage  and 
charges  of  getting  them  again,  is  only  to  be  brought  into  the  average  :  and 
if  even  more  had  already  been  paid,  tlie  furplus  muil  be  returned. — Ordin. 
of  Hamb. 

11.  If  the  fliip  has  not  failed  above  half  it's  voyage,  the  goods  ejecled  are 
to  be  valued  according  to  the  purchafe  and  the  charges  till  Ihipped  ;  but  if  it 
has  failed  about  half  the  way,  according  to  the  market  price  at  the  place  of 

defl:ination,  yet  with  the   dedutlion  of  cuflom   and  other   duties. The 

mafl;er  fliall   be  very  careful,   that  the  heaviefl;  goods,   and  not  the  light  and 

valuable,  be  thrown  overboard. Upon  a  charge   that  valuable  goods  have 

been  thrown  overboard,  before  thefe  fliall  be  admitted  to  average,  it  mufl; 
be  proved  that  they  were  reported  as  valuable  goods,  that  the  freight  and 
duty  for  them  have  been  paid,  and  that  they  were  delivered  to  the  mafter 
as  valuable  goods,  and  in  this  cafe  the  mailer  mufl;  give  in  his  anfwer,  and 
produce  reafons  for  throwing  fuch  goods  overboard. — Ordin.  aj  Copenh. 

12.  If  the  jettifon  was  made  in  the  view  of  efcaping  from  a  privateer, 
and  yet  the  fliip  was  taken,  although  afterwards  flie  was  recovered  by  the 
bravery  and  induftry  of  the  crew,  no  indemnilication  is  due  to  thofe  whofe 
aoodiS  were  cafl:  over-board. — Arbitration-award  of  Mefl'rs.  Emerigon  and 
Duquefnay,  at  Marfeilles,  the  13th  of  February  1748. — ^'ide  Lomat,  Loix 
civiles,  liv.  2.  tit.  9.  f.  2. 

1,;^.  See  Admiralty,  Average,  Contribution,  Freight,  General  Average, 
King,  Lighter,  Salvage,  Wreck. 

JURY. 


[    317    ] 
JURY. 

1.  ALL  gentlemen  of  fortune  are,  in  confequence  of  their  property, 
■^^^  liable  to  be  called  upon  to  eftablifli  the  rights,  to  eftimate  the  injuries, 
to  weigh  the  accufations,  and  fometimes  to  difpofe  of  the  lives  of  their 
fellow-fubjefts,  byferving  upon  juries.  In  this  fituation  they  have  frequently 
a  right  to  decide,  and  that  upon  their  oaths,  qucftions  of  nice  importance, 
in  the  folution  of  which  fome  legal  fl<.ill  is  requifite  ;  efpecially  where  the 
law  and  the  fatt,  as  it  often  happens,  are  intimately  blended  together  :  and 
the  general  incapacity,  even  of  our  beft  juries,  to  do  this  with  any  tolerable 
propriety,  has  greatly  debafed  their  authority ;  and  has  unavoidably  thrown 
more  power  into  the  hands  of  the  judges,  to  direft,  control,  and  even 
reverfe  their  verdifcls,  than  perhaps  the  conftitution  intended. — i  Black. 
Comvi.  8. 

2.     See  Prelim.  Difc.  17.   Amicable  Judicatory,   Conjld,   Court  of  Policies 
of  AJfiirance,  Court- Merchant,  Laxo  Lawfuit  &  Lawyer. 


K. 


KING. 

1.  fT  is  not  cuflomary  for  the  king's  fhips,  packet-boats,  or  goods,  to 
I  contribute  to  any  average,  nor  to  receive  any  contribution  for  any 
part  thereof  that  may  happen  to  be  thrown  over-board,  or  damaged : 
the  reafon  is,  in  goods  belonging  to  his  majefty,  all  his  fubjefts  in  general  are 
concerned  ;  wherefore  for  any  particular  lofs  of  them,  no  particular  contri- 
bution is  neceflary,  becaufe  it  is  fupplied  by  the  general  contribution  of  the 
whole  community. 

2.     See  Average,   Contribution,  General- Average,  Jettifon. 


KONINGSBERG. 

See   Ordinance^  Pilaw. 


4  I  LANDING. 


L. 


LANDING. 

I.  "W"  "TT  "T  HEN  it  is  necefTary  to  lighten  a  (hip,  too  heavy  loaded  to 
V/  \/  enter  into  a  port  or  river,  where  Ihe  is  obhged  to  go  to  avoid 
fliipwreck,  or  capture ;  or  when  it  is  requifite  to  difcharge 
and  land  fome  of  the  goods,  to  fet  her  afloat ;  the  charges  thereof  will  be 
general  average  :  but,  if  the  fhip  be  arrived  in  the  road,  or  port  of  her 
deftination,  and  that  it  is  ufual  there  to  difcharge  the  goods  into  barges  or 
lighters,  the  charges  or  lofs  thereof  regard  only  thofe  to  whom  the  goods 
belong. — 2  Valin's  Comm.  167. 

2.     See  Difcharge,   End  of  Voyage  or  Rifgue,   General  Average,   Lighter, 
Unloading,  Touching. 


LAW,     LAWSUIT,     AND     LAWYERS. 

1.  ''  I  ^  RAD  E  R  S  in  general  are  the  principal  perfons  who  ought  to 
-*•  keep  out  of  litigious  broils  ;  yet,  from  their  conftant  dealings  with 
great  variety  of  people,  they,  and  more  efpecially  thofe  concerned  in  affairs 
of  infurance,  arc  die  moft  liable  to  be  plunged  into  them ;  not  only  by 
reafon  of  the  complicate  nature  and  circumfl:ances  of  thofe  affairs,  but  through 
the  unequal  fituation  of  the  parties  with  refpeft  to  the  ipec'ialfacls  upon 
which  the  rifques  depend,  and  whicli  lie  mofl  commonly  in  the  knowledge 
of  the  iiifurcd  only. 

2.  But  he  that  will  feek  jultice  in  the  law,  ought  to  be  firfl  certain  that 
he  can  obtain  the  fame  in  no  amicable  way  :  the  law  was  not  defigned  to 
promote  broils  and  confufion  among  mankind,  but  to  prevent  them  :  never- 
thelefs,  laxofuits  and  contentions  in  trade  are  fometimes  unavoidable  ;  unlefs 
the  defendant  will  fuffer  depredations  upon  his  property,  he  is  under  the 
neceffity  of  defending  himfclf,  and  feeking  protedion  from  the  law.  For 
a  man  to  defend  himfelf  againfl  the  ftrife,  contention,  and  villany  of 
others,  is  not  to  be  litigious  ;  that  charafter  is  due  to  the  aggreffor ;  for  it  is 
the  duty  of  the  moft  quiet  and  inoffenfive  man  to  defend  himfelf,  when 
offenfivcly  and  unjuftly  attacked. 
■    '  '-  3.     And 


LAW,     LAWSUIT,     AND     LAWYERS. 


:Ji9 


3.  And,  as  every  fubjeft  is  interefted  in  the  prefervation  of  ihe  laws, 
it  is  incumbent  upon  every  nman  to  be  acquainted  with  thofe,  at  leaft,  with 
which  he  is  immediately  concerned ;  left  he  incur  the  cenfure,  as  well  as 
inconvenience,  of  living  in  fociety  without  knowing  the  obligations  which 
it  lays  him  under. — 1  Black.  Comm.  6. 

4.  I  HAVE,  therefore,  endeavoured,  throughout  this  work,  not  only  to 
give  the  flatute  lazo  in  miniature,  which  has  relation  to  the  feveral  fubjeft 
matters  of  it,  but  alfo  the  determination,  in  our  courts  of  common  law  and 
equity,  of  all  the  moft  curious  and  interelling  ca/cs  of  infurance  which  have 
come  before  them. 

5.  Besides  thefe,  we  make  ufe  of  the  civil  and  maritime  law,  in  regard 
to  divers  commercial  and  naval  occurrences ;  which  law  is  exercifed  in  the 
high  court  of  admiralty,  as  correfponding  and  agreeing  with  the  laws  of 
foreign  nations,  being  fuitable  to  the  nature  and  negociations  of  the  people 
that  are  fubjeft  to  them.  By  this  law,  and  the  ancient  cuftoms  thereof,  a 
mutual  intcrcourfe  of  commerce  is  maintained  between  nations,  and  (hould, 
in  trading  ftates,  be  precifely  and  ftriftly  upheld  and  preferved  ;  yet  the 
rights  of  the  municipal  laws  of  the  kingdom  (liould,  by  no  means,  be 
infringed,  but  each  jurifdiftion  reftrained  within  it's  proper  limits  ;  which  will 
be  more  advantageous  to  the  trading  interefts  of  this  nation,  than  the  fufllering 
cither  of  them  to  encroach  upon,  and  devour  the  other  :  and  that  law  which 
is  univerfally  regarded  in  all  trading  nations,  fhould  feem  the  beft  calculated 
to  determine  all  mifunderftandings  between  the  trading  fubjefts  of  thofe 
feveral  nations  which  have  relation  to  traffic,  or  maritime  concerns.  Yet, 
in  the  leagues  that  are  eftabliflied  between  nation  and  nation,  the  laws  of 
either  kingdom  are  excepted  : — "  and  as  the  Englifh  merchants  in  France,  or 
in  any  other  nation  in  amity,  are  fubjeft  to  the  laws  of  that  country  where 
they  refide,  fo  muft  the  people  of  France,  or  any  other  country,  be  fubjeft 
to  the  laws  of  England,   when  refident  here." — See  flat.  19  Hen.  7. 

6.  By  the  common  law,  merchants-  were  always  particularly  regarded  in 
this  kingdom  ;  but  the  municipal  laws  of  England,  or,*indeed,  of  any  realm, 
are  not  fufficient  for  the  ordering  and  determining  the  affairs  of  traffic,  and 
matters  relating  to  commerce,  merchandifmg  being  fo  univerfally  extenfive, 
that  it  is  impoffible  ;  therefore  there  is  another  law%  called  the  law  merchant, 
or  lex  mercatoria,  which  is  a  kind  of  fpecial  law,  differing  from  the  common 
law  of  England,  proper  to  merchants,  and  is  become  a  part  of  the  law  of 
the  realm  ;  and  all  nations  take  fpecial  knowledge  of  this  law  ;  and  the 
common  and  ftatute  laws  of  this  kingdom  leave  the  caufes  of  merchants  in 
many  cafes,  to  their  own  peculiar  law,  which  is  founded  on  cvjioms  and 
ufages  immemorial. 

7.  As  to  laioyers,  they  are,  for  the  moft  part,  wanting  in  the  firft 
rudiments  and  principles  of  thefe  negociations  ;  and  are  at  a  lofs  to  afcertain 

fa6ts. 


320  L  A  W,    L  A  W  S  U  I  T,     AND     L  A  \V  Y  E  R  S. 

fads,  from  whence  judgment  fhould  proceed  : — intent  on  loofing  the  knot, 
whofe  texture  they  are  unacquainted  with,  the  more  they  labour  the  firmer 
the  tie  : — fince,  therefore,  they  are  fo  ignorant  of  the  udiges  and  cufloms 
which  rehite  to  merchandiung,  wherein  merchants  themlllves  only  are 
perfe6Hy  Ikilled,  it  is  not  to  be  admired  that  traders  in  general  had  rather 
trull  to  their  own  judgment,  than  red  on  the  opinions  of  the  ableft  lawyers. 
— Sigjfmundi  Scaccice  Tradatiis  de  Commcrciis  &  Cambiis. 

8.     Remarks. — Nothing  is  fo  much  wanted  as  a   revifal  and  abridgement 
of  our  laws:    next  to  which,  nothing  is  more  wanted  than  a  reformation   in 
the  practice,  and  among  the  praftitioners,  in  the  feveral  departments  thereof. 
— Verbofe  and  uncertain  laws,   fubjeft  to  the  cavils  and  mifreprefentations  of 
mercenary  expofitors,  who  make  a  gainful  traffick  of  litigation,  are  certainly 
the  word  (hackles  a  free,   and  efpecially  a  commercial  people  can  wear  :    it 
affords  fmall  confolation  to  fuch  a  people  to  be  afl'ured  the  principles  of  their 
laws  are  good,  fo  long  as  the  practice  and  mode  of  adminiflering  of  them  are 
notorioufiy  pernicious  and  deftruftive  of  their  property   and  peace. — Many 
of  the  lirll   fortunes    in    this    kingdom,   have    been  raifed,  almofl   within  a 
century,  by  the  pra6lice  of  the  law  :    many  of  the   fairefl  fortunes,    within 
that  period,   have  been  ruined  by  the    fame  praftice. — When  we  commit  our 
cafe  to  eminent  profeffors  of  the  law,  we  find  that,  as  it  is  the  duty  of  one 
fide  to  maintain  truth,   fo  alfo  it  is  the  fpecial  bufinefs  of  the  other,  to  evade 
and  confound  her  as  much  as  in  him  lies. — A  man  gains  his  fuit,  }'et  goes 
away  dilfatisfied :    he  has  obtained  a  verdift  with  colls,  yet  is  he  much  time 
and  money  out  of  pocket. — Is  it  fufficient  that  a  worthlefs    plaintiff  is  non- 
fuited?  The  fame  uncertain  fuccefs  and  cruel  expence,  which  eggs  on  the  unjufl 
man  to  the  moft  unwarrantable  litigation,  terrifies  the  juft  man,   and  deters 
him  from  profecuting  or  defending  his  right ;  for,  do  what  you  will,   fay  what 
you  lift,   you  fhall  never  want  a  venal  advocate :  but,  the  man  who  Ihould 
dare  to  fet  about  confounding,  or  explaining  away   the  obvious   fenfe  of  a 
caufe,  or  the  true  fpirit  and  import  of  a  law,  for  a  fee  or  otherwife,  fhould 

be  puniflied. Trial  by  juries  is  a   plain  argument  of  the  ancient   purity 

and  fimplicity  of  our  laws;  otherwife  common  men  could  not  be  judges: 
they  could  never  tak^. upon  them  to  define  unintelligible  jargon  of  no  one 
language ;  nor  determine  upon  what  was  wrapped  in  a  cloud  of  dark  and 
ambiguous  words;  at  prefent,  our  beft  juries  decide  as  well  as  the  con- 
fufion  of  the  mattefAvill  fuff'cr  them  ;  but,  many  and  great  are  the  wrongs 
done  to  divers  individuals,  which  never  reach  the  knowledge  of  the  public. 

The   foregoing  fubieft   matters  will   be  found  further  elucidated  ;    and 

eligible  means  pointed  out,  for  remedying  fome  of  the  enormous  evils  that 
are  continually  derived  from  them,  with  refpeft  to  the  affairs  of  inilirance 
in  particular,  under  feveral  of  the  titles  referred  to  below. 

9.  See  Prelim.  Difc.  15  to  20,  33  &feq.  Admiralty  &  Admiralty  Court, 
Amicable  Judicatory,  Arbitration  &  Award,  AJfociation,  Cafes  Adjudged, 
Chamber  of  AJfurance,   Civil  Law,    Court-Merchant,    Court   of  Policies   of 

Afurance, 


LAW       OF       NATIONS. 


321 


AJfurance,    Difpute,    Equity,    Infurance,   Jury,    Laxc- Merchant,    Maritime 
Laxo,   Oleron,   Ordinance,   Rliodian  Laws,  Statutes,  Wijbuy  Lazes, 


LAW-MERCHANT     OR    LEX    MERCATORLA. 

1.  XTO  municipal  laws  can  be  fufficient  to  order  and  determine  the  very 
-^^  extenfive  and  complicated  affairs  of  traffic  and  merchandife  ;  neither 
can  they  have  a  proper  authority  for  this  purpofe  :  for  as  thefe  are  tranfac- 
tions  carried  on  between  fubjefts  of  independent  ft:ates,  the  municipal  laws 
of  one  will  not  be  regarded  by  the  other  : — for  which  reafon  the  affairs  of 
commerce  are  regulated  by  a  law  of  their  own,  called  the  law-merchant  or 
lex  mercatoria ;  which  all  nations  agree  in  and  take  notice  of:  and  in  parti- 
cular it  is  held  to  be  part  of  the  law  of  England,  which  decides  the  caufes  of 
merchants  by  the  general  rules  which  obtain  in  all  commercial  countries  ;  and 
that  often  even  in  matters  relating  to  domefl:ic  trade. — 1  Black.  Comm.  273. 

2.  Per  curiam  ;  the  law  of  merchants  is  the  larv  of  nations,  and  part  of 
the  common  law ;  and  therefore  we  ought  to  take  notice  of  it,  when  fet  forth 
in  pleading. — 1  Injt.  11.  b.  182.  a. — Meggadoxo  v.  Holt.  Hil.  3  W.  &  M. 
12  Mod.  Rep.  15. 

3.  Holt,  chief  juftice  faid  ;  We  take  notice  of  the  laws  of  merchants  that 
are^c?7<?rfl/,  not  of  thofe  that  are  particular  usages.— Lethulier's  ca/e.  Mich. 
4  W.  &  M.  2  Salk.  443. 

4.  See  Prelim.  Difc.  10.  Cujlovi,  Law,  Lazo  of  Nations,  Vfage,  Voyage. 

LAW       OF       NATIONS. 

1.   TT  is  not  lefs,  nay  it  is  often  more  requifite  for  merchants  and  infurers, 

-^  to  be  acquainted  with  the  law  of  nations,  than  with  the  municipal  law 

of  their  own  country ;  fince  it  is  by  the  former  that  the  greater  part  of  all 
commercial  and  maritime  affairs  is  regulated. 

2.  The  law  of  nations  is  a  fyfl.em  of  rules,  deducible  by  natural  reafon, 
and  eftabliffied  by  univerfal  confent  among  the  civilized  inhabitants  of  the 
world  ;  in  order  to  decide  all  difputes,  to  regulate  all  ceremonies  and  civilities, 
and  to  infure  the  obfervance  of  juftice  and  good  faith,  in  that  intercourfe 
which  muft  frequently  occur  between  two  or  more  independent  ffates,  and  the 
individuals  belonging  to  each.  This  general  law  is  founded  upon  this 
principle,  that  different  nations  ought  in  time  of  peace  to  do  one  another  all 
the  good  they- can;  and,  in  time  of  war,  as  little  harm  as  poffible,  without 
prejudice  to  their  own  real  interefts.  And  as  none  of  thefe  ftates  will  allow  a 
iuperiority  in  the  other,  therefore  neither  can  dictate  or  prefcribe  the  rules 

4  K  of 


3J2  LAW       O    F       NATION     S. 

of  this  law  to  the  reft;  but  fuch  rules  muft  neceftarily  refult  from  thofc 
principles  of  natural  juftice,  in  which  all  the  learned  of  every  nation  agree : 
or  they  depend  upon  mutual  compacts  or  treaties  between  the  refpeclive 
communities  ;  in  the  conftru6lion  of  whicli  there  is  alio  no  judge  to  refort 
to,  but  the  law  of  nature  and  reafon,  being  the  only  one  in  which  all  the 
contrafting  parties  are  equally  converfant,    and  to  which   they  are    equally 

fubjeft. In  arbitrary    Hates  this   law,   wherever  it  contradifts  or  is  not 

provided  for  by  the  municipal  law  of  the  country,  is  enforced  by  the  royal 
power :  but  fince  in  England  no  royal  power  can  introduce  a  new  law,  or 
fufpend  the  execution  of  the  old,  therefore  tlie  law  of  nations  (wherever  any 
queftion  arifes  which  is  properly  the  objeft  of  it's  jurifdiction)  is  here  adopted 
in  it's  full  extent  by  the  common  law,  and  is  held  to  be  a  part  of  the  law  of 
the  land  :  and  thofe  afts  of  parliament,  which  have  from  time  to  time  been 
made  to  enforce  this  univerfal  law,  or  to  facilitate  the  execution  of  it's 
decifions,  are  not  to  be  confidered  as  introduftive  of  any  new  rule,  but 
merely  as  declaratory  of  the  old  fundamental  conftitutions  of  the  kingdom  ; 
without  which  it  muft  ceafe  to  be  a  part  of  the  civilized  world. — Thus  in 
mercantile  queftions,  fuch  as  bills  of  exchange  and  the  like  ;  in  all  marine. 
caufes,  relating  to  freight,  average,  demurrage,  inficrances,  bottomry,  and 
others  of  a  ftmilar  nature  ;  the  laxjo-mer chant,  which  is  a  branch  of  the  law  of 
nations,  is  regularly  and  conftantly  adhered  to.  So  too  in  all  difputes  relating 
to  prizes,  X.oJJiipwrechs,  lohojlages,  and  ra?ifo7n  bills,  there  is  no  other  rule  of 
decifionbut  this  great  univerfal  law,  collefled  from  hiftory  and  ufage,and  fuch 
writers  of  all  nations  and  languages  as  are  generally  approved  and  allowed 

of. But,  though  in  civil   tranfaftions  and  queftions  of  property  between 

the  fubjefts  of  different  ftatey,  the  law  of  nations  has  much  fcope  and  extent, 
as  adopted  by  the  law  of  England  ;  yet  the  prefent  branch  of  our  enquiries 
will  fall  within  a  narrow  compals,  as  offences  againft  the  law  of  nations  can 
rarely  be  the  objeft  of  the  criminal  law  of  any  particular  ftate  :  for  offences 
againft  this  law  are  principally  incident  to  whole  ftates  and  nations  :  in  which 
cafe  recourfe  can  only  be  had  to  war  ;  which  is  an  appeal  to  the  God  of 
Hofts,  to  punifh  fuch  infraftions  of  public  faith,  as  are  committed  by  one 
independent  people  againft  another;  neither  ftate  having  any  fuperior 
jurifdiftion  to  refort  to  upon  earth  for  juftice  :  but  where  the  individuals  of 
any  ftate  violate  this  general  law,  it  is  then  the  intereft  as  well  as  duty  of  the 
government  under  which  they  live,  to  animadvert  upon  them  with  a  becoming 
feverity,  that  the  peace  of  the  world  may  be  maintained  :  for  in  vain  would 
nations  in  their  collective  capacity  obferve  thefe  univerfal  rules,  if  private 
fubjefts  were  at  liberty  to  break  them  at  their  own  difcrction,  and  involve 
the  two  ftates  in  a  war  :  it  is  therefore  incumbent  upon  the  nation  injured, 
firft  to  demand  faiisfaftion  and  juftice  to  be  done  on  the  offender,  by  the 
ftate  to  which  he  belongs  ;  and,  if  that  be  refufed  or  neglefted,  the  fovereign 
then  avows  himfelf  an  accomplice  or  abettor  of  his  fubjeft's  crime,  and  draws 
upon  his  community  the  calamities  of  foreign  war. — 4  Black.  Comm.  66. 

3.     A  FURTHER   acquaintance   with  this  fubjed,  in  refpeft  of  commerce 
and  navigation,  may  be  attained  by  a  perufal  of  the  following 

ExtraEl 


LAW       OF       NATIONS. 


323 


ExtraEl  from  the  Report  of  Sir  Geo.  Lee,  judge  of  the  prerogative  court; 
Lr.  Paul,  advocate  general ;  Sir  Dudley  Ryder,  and  Mr.  Murray,  attorney, 
and  folicitor  general;  made  to  the  late  King  George  ii.  in  1753;  concerning 
the  Seizure,    Sec.  oiPniJJian  Ships. 

T  7t  7  HEN  two  powers  are  at  war,  they  have  a  right  to  make  prizes  of 
'  »  the  (liips,  goods,  and  effefts,  of  each  other,  upon  the  high  feas  : 
whatever  is  the  property  of  the  enemy  may  be  acquired  by  capture  at  fea ; 
but  the  property  of  a  friend  cannot  be  taken,  provided  he  obfcrves  his 
neutrality :  hence  the  law  of  nations  has  eftablifhed, — that  the  ^oods  of  an 
enemy,  on  board  the  Jliip  of  a  friend,  may  be  taken  : — that  the  lawftil  goods 
of  a  friend,  on  board  the  JJiip  of  an  enemy  ought  to  be  rejlored ;— that 
contraband  goods,  going  to  the  enemy,  though  the  property  of  ^friend,  may 
be   taken    as   prize  ;    becaufe    fupplying  the  enemy  with  what   enables   him 

better  to  carry  on  the  war,    is  a  departure  from  neutrality. By  the  maritime 

]aw  of  nations,  univerfally  and  immemorially  received,  there  is  an  eftablifhed 
method  of  determination,  whether  the  capture  be,  or  be  not,  lawful  prize  : 
-s-before  the  fliip,  or  goods,  can  be  difpofed  of  by  the  captor,  there  muft 
be  a  regular  judicial  proceeding,  wherein  both  parties  may  be  heard,  and 
condemnation  thereupon  as  prize,  in  a  court  of  admiralty,  judging  by  the 
law  of  nations  and  treaties :-— the  proper  and  regular  court  for  thefe 
condemnations,  is  the  court  of  that  ftate,  to  whom  the  captor  belongs  ;— 
the  evidence  to  acquit  and  condemn,  with,  or  without,  cofts  or  damages, 
muft,  in  the  firft  inftance,  come  merely  from  the  ftiip  taken,  viz.  the  papers 
on  board,  and  the  examination  on  oath  of  the  mafter  and  other  principal 
officers  ;  ibr  wliich  purpofe,  there  are  officers  of  admiralty  in  all  the 
confiderable  Tea  ports  of  every  maritime  power  at  war,  to  examine  the 
captains  and  other  principal  officers  of  every  ffiip,  brought  in  as  prize,  upon 
general  and  impartial  interrogatories  :  if  there  do  not  appear  from  thence 
gound  to  condemn  as  enemy's  property,  or  contraband  goods  going  to  the 
enemy,  there  mufl  be  an  acquittal,  unlcfs  from  the  aforefaid  evidence  the 
property  fliall  appear  fo  doubtful,  that  it  is  reafonable  to  go  into  further 
proof  thereof : — a  claim  of  ffiip,  or  goods,  muft  be  fupported  by  the  oath 
of  fomebody,  at  leafh  as  to  belief, — The  law  of  nations  requires  good  faith  : 
therefore  every  ffiip  muft  be  provided  with   complete  and  genuine  papers ; 

and  the  mafter  at  leaft  ffiould  be  privy  to  the  truth  of  the  tranfaftion. To 

enforce  thefe  rules,  if  there  be  falfe  or  colourable  papers  ;  if  any  papers  be 
thrown  overboard ;  if  the  mafter  and  officers  examined  in  prarparatorio 
grofsly  prevaricate  ;  if  proper  ftiip's  papers  are  not  on  board  ;  or  if  the 
mafter  and  crew  cannot  fay,  whether  the  (hip  and  cargo  be  the  property  of  a. 
friend  or  an  enemy,  the  law  of  nations  allows,  according  to  the  different 
degrees  of  mifbehaviour,  or  fufpicion,  arifing  from  the  fault  of  the  fliip  taken, 
and  other  circumftances  of  the  cafe,  cofts  to  be  paid,  or  not  to  be  received, 
by  the  claimant,  in  cafe  of  acquittal  and  reftitution. — On  the  other  hand, 
if  a  feizure  is  made,  without  probable  caufe,  the  captor  is  adjudged  to  pay 
cofts  and  damages :    for  which  purpofe,  all  privateers  are  obliged  to  give 

fecarity 


324  L    A    W       O    F       N    A    T    I    O    N     S. 

fecurity   for   their   good  behaviour :   and  this   is  referred  to,    and  cxprefsly 

Ilipulated   by  many  treaties.* Though  from    the    fhip    papers,    and  the 

preparatory  examinations,  the  property  does  not  fufficiently  appear  to  be 
neutral,  the  chiimant  is  often  indulged  with  time,  to  fend  over  affidavits  to 
fupply  that  defe6l :  if  he  will  not  (hew  the  property,  by  fufficicnt  affida\its, 
to  be  neutral,  it  is  prefunied  to  belong  to  the  enemy  : — where  the  property 
appears  from  evidence  not  on  board  the  fliip,  the  captor  is  jultified  in 
bringing  her  in,  and  excufed  paying  cofts,  becaufe  he  is  not  in  fault ;  or, 
according  to  the  circumflances  of  the  cafe,  may  be  juiUy  entitled  to  receive 

his   colls, If  the   fentence  of  the    court  of  admiralty   is   thought  to   be 

erroneous,  there  is  in  every  maritime  country  a  fuperior  court  of  review, 
confining  of  the  moft  confiderable  perfons  ;  to  which  the  parties,  who  think 
themfelves  aggrieved,  raay  appeal :  and  this  fuperior  court  judges  by  the  fame 
rule  which  governs  the  court  of  admiralty,  viz.  the  law  of  nations,  and  the 
treaties  fubfilling  with  that  neutral  power,  whofe  fubjeft  is  a  party  before 
them : — if  no  appeal   is  offered,   it  is  an  acknowledgement  of  the  juftice  of 

the  fentence  by  the  parties   themfelves,  and  conclufive. This  manner  of 

trial  and  adjudication   is    fupported,    alluded    to,    and   enforced,     by   many 

treaties.i In  this  method,  all   captures  at  fea  were  tried   during  the  laft 

war,  by  Great-Britain,  France,  and  Spain,  and  fubmitted  to  by  the  neutral 
powers :  in  this  method,  by  courts  of  admiralty  afting  according  to  the  law 
of  nations,  and  particular  treaties,  all  captures  at  fea  have  immemorially 
been  judged  of,  in  every  country  of  Europe  :    any   other  method   of  trial 

would  be  manifeflly  unjuft,  abfurd,  and  impraclicable. Though  the  law 

of  nations  be  the  general  rule  ;  yet  it  may,  by  mutual  agreement  between 
two  powers,  be  varied  or  departed  from  ;    and  where  there  is   an  alteration, 

*  Treaty  between  £«^/a»(/  Anik  Holland,  the  lytli  ol  February  1668,  art.  13. — Treaty  the  ifl  ot 
December  1674,  art.  10.— Treaty  between  England  and  France  at  St.  Germains,  the  24ih  of  February 
1677,  art.  10. — Treaty  of  commerce  at  RyfwicJ;,  the  20th  of  September  1697,  between  France  anil 
Holland,  art.  30. — Treaty  of  commerce  at  Uiretcht,  the  31ft  of  March  1713,  bciween  G real-Britain 
and  France,  art.  2^. 

+  As  appears,  wiili  refpeft  to  courts  of  admiralty  adjudging  the  prizes  taken  by  tliofe  of  their  own 
nation,  and  with  refpcft  to  the  witneflcs  to  be  examined  in  thofe  cafes,  from  the  following  treaties, 
inz.  treaty  between  England  and  Holland,  the  17th  of  I"eb.  1668,  art.  9  and  14. — Treaty  the  iflof 
Decern,  1674,  art.  ii. — Treaty  the  29th  of  April  1689,  art.  12,  13. — Treaty  between  England  and 
Spain,  the    23d  of  May   1667,  art.   23. — Treaty  of  commerce   at  Ryfwick,  the  20th  of  Sept,  1697, 

between  France  and  Holland,  art.   26   and  31 Treaty  between  England  and  France,  the  3d  of  Nov. 

1655,  art.  17  and  18. — Treaty  of  commerce  between  £;;^/a«i^  and  France,  at  St.  Germains,  the  29th  of 
March    1632,    art.   ,5  and  6. — Treaty  at  St.  Gcrmainh,  the    24ih   of  Feb.    1677,  art.  7. — Treaty    of' 
commerce  between  Great-Britain  and   France,  at  Utrecht,  the  31ft  of  March  1713,  art.  26  and  30. — 
Treaty  between  England  and   Denmark,  the  29th  of  Nov.    1669,  art.   23  and  34. — Heineccius,  who 
was  privy  counfellor  to  the  king  of  Prudia,  and  held  in  the  greatell  efteem,  in  his  treatife  De  navibusob 

vefluram  vetitarum  mcrcium  commilfis,    c.  e.  f.  17  and  18,  fpcaks  of  this  method  of    trial. With 

refpeft  to  appeals  or  reviews:  from  treaty  between  £/7^/an(/ and  Holland,  the  ill  of  Decern.  1674, 
art.  12,  as  it  is  explained  by  art.  2,  of  the  treaty  at  Weftminfter,  the  6(li  of  Feb.  i7r|. — Treaty  between 
England  and  France,  at  St.  Germains,  the  24th  of  Feb.  1677,  art.  12. — Treaty  of  commerce  at 
Ryfwick,  the  20th  of  Sepiem.  1697,  between  France  nn'\  Holland,  art.  33. — Treaty  of  commerce  at 
Utreuht,  the  3tft  of  March  1713,  between  Great-Britain  and  France,  art.  31  and  32,  and  other  treaties, 

or 


LAW      OF       NATIONS. 


325 


or  exception,  introduced  by  particular  treaties,  that  is  the  law  between  the 
parties  to  the  treaty  :  and  the  law  of  nations  only  governs  fo  far  as  it  is  not 
derogated  from  by  the  treaty  : — thus  by  the  law  of  nations,  where  two  powers 
are  at  war,  3tll  (hips  are  liable  to  be  flopped,  and  examined  to  whom  they 
belong,  and  whether  they  are  carrying  contraband  to  the  enemy :  but 
particular  treaties  have  enjoined  a  lefs  degree  of  fearch  on  the  faith  of 
producing  folemn  paflports,  and  formal  evidences  of  property,  duly  attefled : 
— particular  treaties  too  have  inverted  the  rule  of  the  law  of  nations,  and,  by 
agreement,  declared  "  the  goods  of  dijrieyid  on  board  the  JJiip.  of  an  enemy 
to  h&  prize  ;  and  the  ^oo^jr  of  an  enemy,  onboard  x\ic  JIiip  of  di  friend,  to 
htfree  ;" — as  appears  from  the  treaties  already  mentioned,  and  many  others  :* 
— -fo  likewife,  by  particular  treaties,  "  fome  goods  repirted  contraband  by 

the  law  of  nations  are  declared  to  be  fpe^." -If  the  matter  of  complaint  be 

a  capture  at  fea  during  war,  and  the  queftion  relative  to  prize,  the  claimant 
ought  to  apply  to  the  judicatures  eflablilhed  to  try  thefe  queftions : — the  law 
of  nations,  founded  upon  juftice,  equity,  convenience,  and  the  reafon  of  the 
thing,  and  confirmed  by  long  ufage,  does  not  allow  of  reprifals,  except  in 
cafe  of  violent  injuries,  direfted  or  fupported  by  the  ftate,  and  juftice  abfo- 
lutely  denied  in  re  minime  dubid,  by   all  the  tribunals,  and    afterwards  by 

the  prince. + ^Wh  re  the  judges  are  left  free,    and  give  fentence  according 

to  their  confcience,  though  it  fhould  be  erroneous,  that  would  be  no  ground 
for  reprifals  :  upon  doubtful  queftions,  different  men  think  and  judge 
differently  ;  and  all  a  friend  can  defire,  is,  that  juftice  fliould  be  as  impartially 
adminiftered  to  him,  as  it  is  to  the  fubjefts  of  that  prince,  in  whole  courts 
the  matter  is  tried. 

4.  Remark. — 'The  law  of  nations  and  faith  of  treaties  fliould,  undoubt- 
edly, be  ftriftly  obferved,  and  tranfaflions  with  foreign  ftates,  ftiould  be 
condufted  with  the  ftrifteft  honour:  riccox6\x\^y  Montefquieu  acknowledges, 
that  "  this  is  the  charafteriftic  of  the  EngliJIi,  and  that  in  all  negociations 
the  national  faith  rem.ains  unparallelled  :" — how  different  from  this  has  been 
the  condu6l  of  France,  with  refpeft  to  the  depredations  made  on  the  Englifli 
commerce,  &c.  from  the  commencement  of  our  conteft  with  America,  all  the 
world  is  witnefs  of! 

5.  See  Admiralty  &  Admiralty-Coiirt,  Appeal,  Capture,  Civil- Law, 
Condemnation,  Conjifcation,  Contraband,  Enemy,  Freedom  of  Navigation,  Laxo, 
Laxc-Merchant,  Letter  of  Marque,  Maritime  Laxo,  Mafqued  Ship  or  Property, 
Neutral  Ship  or  Property,  Pajfport,  Rcprifal,   Treaty,  War. 

*  Particularly  by  the  aforefaid  treaty  between  England  and  Holland,  the  ifl  of  Decern.  1674  ; — and 
the  treaty  ol  Utrecht,  between  Great-Britain  and  France. 

+  Grolius  de  Jure  Belli  ac  Pacis,  1.  3.  c.  2.  f.  4,  5. — Treaty  between  England  and  Holland,  the  31ft 
of  Jily  1667,  an.  31.  "  Reprifals  fhall  not  he  granted,  till  juftice  has  been  demanded  according  to 
"  the  ordinary  courfe  of  law." — Treaty  of  commerce  at  Rylwick,  the  20th  of  Sept.  16(37,  betweeix 
France  and  Holland,  art.  4.  "  Reprifals  fhall  not  be  granted,  but  on  manlfcll  denial  of  juftice." 

4L  LEAKAGE, 


326  LEGHORN. 

LEAKAGE. 

I.  T  F  the  party  infured  can  prove  that  the  prejudice  or  leakage  was,  after 
■*-  the  goods  were  put  on  board,  occafioned  by  unfortunate  accidents,  as, 
bad  weather,  arrefl,  and  the  Uke.  the  infurer  (unlefs  exempted  by  a  particular 
claufc)  mull  bear  thofe  lodes  ;  but,  according  to  the  (late  of  the  circumflances, 
can  obtain  proper  redrefs  from  the  fhip  and  the  mailer,  or  the  perfons  in 
fault. — Ordin.  of  Konigfb. 

2.  In  the  policy  fhall  be  fpecified  thofe  goods  that  are  fubjeft  to  leakage ; 
without  which  the  infurer  fliall  not  be  anfwerable  for  the  damage  that  may 
happen  them  by  ftorm ;  except  the  infurance  be  made  upon  returns  from 
foreign  countries. — Ordin.  of  France. 

3.  The  reafon  of  the  exception  in  the  French  ordinance,  as  above,  is,  that 
the  affured  is  fuppofed  not  to  know  what  fort  of  goods  will  be  fent  to  him  in 

return  from  dijlant  countries. In  England,   there  is  feldom  any  particular 

ftipulation  inferted  in  the  policy  with  refpe6l  to  leakage  :  it  is  underflood  that 
the  infurers  are  not  liable  for  common  leakage,  natural  wafle,  or  any  lofs  of 
liquors  or  other  commodities,  proceeding  from  bad  caflis  or  bad  llowage,  pil- 
fering or  embezzlements  by  the  crew  of  the  fliip ;  but  they  are  anfwerable  for 
fuch  lofs  as  happens  from  florms,  or  other  unavoidable  accidents,  deducting  the 
ordinary  or  common  wafle  or  leakage,  as  it  is  regulated  by  cuRom  ;  which  is 
more  or  lefs  according  to  the  fort  of  liquor,  &c.  and  the  length  of  the  voyage  : 
it  is,  neverthelefs  necelfary  to  obferve  that,  howfoever  confiderable  the  lofs  may 
be,  it  cannot  be  demanded  of  the  infurers,  unlefs  there  be  proof  \hz.x.  the  calks 
have  been  damaged  by  llorm  or  other  accident;  for,  otherwife  it  mull  be  re- 
garded as  patural,  or  as  proceeding  from  the  caufes  iirll  above  mentioned. 

4.  See  Prelim.  Di/c.  4g.  Accident,  Average,  Commodity,  Damage,  Freiglit^ 
Goods,  In/ujicicncy,  Mafler,  Negligence^  Stowage,  Sugar,  Theft. 

LEGHORN. 

1.     Policy    on  Goods,   at  Leghorn. 

I  H  M  T 

M  the  day  of 

T>  E  it  known  to  all  men,  that  caufes  himfelf  to   be   infured   for 

-*-'    himfelf  upon  ,  or  upon   any  other  merchandife,  thofe  only   excepted, 

which  are  prohibited  by  the  gentlemen  officers  of  affurances  belonging  to 
or   to  whom   clfe  they  may  appertain,   all  to  one,  or  all  to  another  ;    or  part  to  one,  and 
part  to  another,  by  whomfoever  they  have  been  fhipped  or  may  be  fliipped,  in  the  harbour 
or  road  of  ,by  the  hands  of  ,  or  by 

whomfoever  clfe  it  may  be,  in  the  name,  or  by  order,  of  any  of  the  above  mentioned, 

or 


LETTEROFMAROUE.  327 

6r  of  at))'  other,,  on  board  the  ,  6r  by  what  other  name  foever  the 

mafter  may  be  called,  ,  and  whoever  elfe  it  may  be,  till  the  lame  fhail 

be  fafely  landed  on  fhore  at  .     And  the  laid  velFel  may  touch  at 

any  place  and  fail  forwards  or  backwards,  to  the  right  or  left,  according  to  the  opinion 
of  the  mafter,  for  the  performing  any  thing  that  his  neceffities  may  require :  arid  ths 
infurcrs  run  always  the  rifque  of  all  accidents  of  the  fea,  fii^e,  jettifon,  reprifals,  robbery  by 
friends  or  enemies,  and  of  all  and  every  accident,  dangers,  ftorms,  difafters,  reftraints,  and 
other  unexpeQed  cafes,  which  fliall  have  happened  to  the  fhip,  oT  rriay  befcill  the  fame,  even 
if  it  was  barratry  of  the  mafter,  the  flowing  and  cuftom-houfes  excepted,  until  the  fame 
fliall  be  fafely  on  fliore  at  the  place  above  mentioned.  But  if  the  fame  are  not  fliipped, 
the  infurers  fhall  keep  one  half  per  cent,  for  themfelvfes,  and  return  the  remainder  to  the 
faid  alfured.  And  if  the  fliip  fhould  be  loft,  they  may  endeavour  to  fave  and  recover 
them,  without  permiffion  firil  had  from  the  aflurers  :  and  if  any  misfortune  fliall  happen 
to  thefe  goods  (which  God  prevent)  then  the  aflurers  fliall  pay  to  each  of  the  aflured  the 
films  by  them  refpeSively  infured,  within  two  months  after  the  day  when  advice  thereof 
is  received    in  .     And  in  cafe  there  fliould  not  come  any  certain 

account  within^^.^  inontln,   then  the  afllirer  fliall  pay   to  each  of  them  the  fum  which  they 
have  infured  :     and  if  the  faid  goods  fliould  afterwards  arrive,  and  be  fafely  landed  at  the 
place    mentioned,     then  the  aflured    fliall  return   to    each   th&   money  which  they    have 
received.     And  the  aflurers    fliall  be  obliged  previoufly  to  pay  to  each  of  the  affureds,  as 
aforefaid,    the  fums   by  them  infured,  and   afler  that   may   take   their  courfe  at  law,  the 
afllired  giving  one  or  more  mfficrent  fecurities,  as  the  gentlemen  of  the  court  of  aflurancej 
fliall  dircft,  that  they  will   return  to  every    one   the  money  received,  with  lofs  of  twenty 
per  cent,  and  the  aflurers  to  be  allowed  eighteen  months  to  bring  proof :     declaring  at  the 
fame  time,  that   the  aflurers  are  not  liable  in  cafe  the   viajlcr  {honldjlcal   any   thing  from 
the  faid  fliip.     And  for  the  true  performance  of  what  is  herein  contained,  the   faid  affurers 
bind  themfclves  and  their  heirs,  with  all  their  prcfent  and  future  goods  and  chattels,  to  the 
afllireds  above  mentioned,  and   fubniit  thcmfelves   to  the  abovefaid  gendemen  officers  for 
afliirances,  and  to  every  other  court   of  law  or  juftice,  where  the  faid  a.Tureds  fliall  lodge 
their  complaints  againft  them.     Pray  God  grant  a  fafe  arrival. 

2.     See  Infurance,  Lofs,  Ordinance,  Theft. 


LETTER       OF       MARQUE. 


■L 


E  T  T  E  R  S  of  Marque    or  Mart,   are    extraordinary   commiflions 
granted  by  the  lords  of  the  admiraky,  or  by  the  vice-admirals  of 
any  diftant   province,  to  the  commanders  of  merchant  fhips,   or  privateers, 
to  cruife  againft,   and  make  prizes  of  the  enemy's  fliips,  or  veftels,  either  at 
fea,   or  in  their  harbours. 

2.     They  feem  to  be  always  joined  to  thofe  of  reprife,    for  the  reparation 
of  a  private  injury  ;   but,  when  the  hurt  of  an  enemy  is  folely  intended  under 

a  declared  war,  the  former  only  are  granted   to  privateers. This  cuftom 

of  rejmfals  is  now  become  a  law  by  the  cOnfent  of  nations,  and  has  been 
generally  confirmed  by  an  article  in  almoft  every  treaty  of  peace  that  has, 
for  fome  years  paft,   been  made  in  Europe,  under  it's  proper  reftriftions  and 

limitations. 


328  LIGHTED. 

limitations. If  he  who  hath  letters  of  marque  or  reprifal,  takes  the  fliips 

and  goods  of  that  nation,  againfl:  whom  the  fame  are  awarded,  and  carries 
them  into  the  port  of  any  neuter  nation ;  the  ownets  may  there  feize  her, 
or  there  the  admiral  may  lawfully  make  reftitution,  as  well  of  the  fliip  and 
goods  to  the  owners,  as  the  captive  perfons  to  their  liberty  ;  for  that  the 
fame  ought  firfl  to  have  been  brought  infra  prqfidia  of  that  prince  or  ftate, 
by  whofe  fubjefts,  and  under  whofe  commifiTion,  the  fame  was  taken. — Less 
Merc,  rediv.  158,  206. 

3.     See  Prelim.  Difc.   45.  Colony,   Commiffion  of  Marque,   Condemnation y 
Foreign  Court,  Hoflilit.y,  Inierefl  or  no  Intercjl,  Pirate,  Prize,  Reprifal,  War. 


LIGHTER. 

1,  /^  A  S  E. — The  plaintiff  put  goods  on  board  the  defendant's  hoy,  who 
^-^  was  a  common  carrier :  coming  through  bridge,  by  a  fudden  gult 
of  wind,  the  hoy  funk,  and  the  goods  were  fpoiled  :  the  plaintiff"  infilled, 
that  the  defendant  fliould  be  liable,  it  being  his  carelelTnefs  in  going  through 
at  fuch  a  time  ;  and  offered  fome  evidence,  that  if  the  hoy  had  been  in 
good  order,  it  would  not  have  funk  with  the  ftroke  it  received,  and  from 
thence  inferred,  the  defendant  was  anfwerable  for  all  accidents,  which  would 
not  have  happened  the  goods  had  they  been  put  into  a  better  hoy. — But 
the  chief  juftice  held  the  defendant  not  anfwerable,  the  damage  being 
occafioned  by  the  aft  of  God  :  for  though  the  defendant  ought  not  to  have 
ventured  to  flioot  the  bridge,  if  the  general  bent  of  the  weather  had  beea 
tempeftuous  ;  yet  this  being  only  a  fudden  guff  of  wind,  had  entirely  differed 
the  cafe  :  and  no  carrier  is  obliged  to  have  a  new  carriage  for  every  journey  : 
it  is  fufficient  if  he  provides  one  which  (without  any  extraordinary  accident 
fuch  as  this  was)  will  probably  perform  the  journey. — Stran.  128.  Mich, 
5  Geo.  1. — Amies  \.  Stevens. 

2.  Case. — Aftion  againfl  the  defendant  as  a  common  carrier,  on  an 
undertaking  to  carry  for  hire  on  the  river  Thames,  from  the  fhip  to  the 
company's  warehoufes  :  upon  the  evidence  it  appeared,  the  defendant  was 
a  common  lighterman,  and  that  it  was  the  ifagc  of  the  company  on  the 
unffiipping  of  their  goods,  to  clap  an  officer,  who  is  called  a  guardian,  in  the 
lighter,  who  as  foon  as  the  lading  is  taken  in,  puts  the  company's  lock 
on  the  hatches,  and  goes  with  the  goods  to  fee  them  fafelv  delivered 
at  the  warehoufes :  it  appeared  to  be  done  fo  in  this  caic,  and  part  of 
the  goods  were  loll. — The  chief  juftice  was  of  opinion,  this  differed  from  the 
common  cafe  :  this  not  being  any  truft  in  the  defendant,  and  the  goods 
were  not  to  be  confidered  as  ever  having  been  in  his  poileffion.  but  in  the 
poffeffion  of  the  company's  fervant,  who  hired  the  lighter  to  ufe  himfelf : 
he  thought  therefore  the  aftion  was  not  maintainable,  fo  the  plaintiffs  were 
nonfuitcd. — (Strange  pro  quer.)  Stran.  6go.  Hil.  12  Geo.  1,  at  Guildhall, 
coram  Raymond  C.  J. — Eiifi-India  Company  v.  Pullcn, 

3.    Case. 


L      I      G      H      T      E      R,  329 

3.  Case. — The  defendant  ihfured  goods  to  London,  and  until  the  fame 
Hiall  be  fafely  Landed  there  :  the  (hip  arrived  in  the  port  of  London,  and  the 
owner  of  the  goods  fent  his  lighter,  and  received  the  good?  out  of  the  fhip  ; 
but  before  they  reached  land  an  accident  happened,  Avhereby  the  goods 
M'cre  damaged  ;  for  whicli  this  aftion  was  brought  againfl  the  infurer. — For 
the  defendant  it  was  infilled  upon,  that  the  accident  happened  after  the 
owner  had  taken  the  goods  into  his  poirefTion  :  it  was  a  lofs  after  the  infurance 
was  ended.-^To  which  it  was  anfwered  that,  if  this  had  been  ah  aftion  againfl: 
the  mailer  or  owners  of  the  fhip,  that  would  have  been  a  good  anfwer ;  ^or 
they  were  certainly  difcharged  ;  but  in  this  a6lion  it  could  be  no  anfwer,  for 
during  all  the  voyage,  it  might  as  well  be  ("aid  the  goods  were  in  the  poffefTion 
of  the  allured,  who  took  the  fiiip.to  freight,  and  whofe  fervant  the  mafle? 
was,  to  this  purpofe,  as  much  as  the  lighterman:  and  thefe  words  are  puij 
into  policies,  to  guard  againil  all  fort  of  lofs,  till  there  is  an  adual  landing.. ^^ 
becaufe  in  the  cafe  of  (hips  of  great  burthen,  that  are  forced  to  lie  off,  ther^,. 
may  be  a  carriage  for  many  miles  in  boats  or  lighters,  and  it  was  in  ther. 
courfe  of  trade  for  the  oAvner  of  the  goods  to  fend  his  lighter. — But  the  chief 
juflice  held  the  infurer  was  difcharged  :  he  faid  it  would  have  been  otherwife, 
had  the  goods  been  fent  by  \hcj]iip's  boat,  which  is  conhdered  as  part,  of  the 
fhip  and  voyage: — and  the  jury  (which  was  of  merchants)  expreflGng,  they 
thought  it  turned  upon  that  dijlinction,  brought  ia  a:yeidi61;j._as  tothj^  poinj:, 
againil  the  plaintiff. — Sir  an.  1236.     18  Geo.  2. — ^Sparwze  y.,Qaruthers.\       ■  ,.< 

4.  Lv  cafe  any  goods,  in,  their  pafTagie  td  tlie  fhip,  ,pr  from. if,  happen  to 
receive  damage,  either  through  any  f^ult  in  the  vehicle,  or  negligence  or 
diflionefly  of  the  people  belonging  to  theiighter  or  bqat  in  which  they. were, 
the  mafler  of  the  fhip  not  being  in  any  wife  chargeable  with  any  failure 
therein,  he  fhall  be  obliged  immediately  to  feek  'compenfation  .  for  fucli 
damages  from  the  owner  of  the  lighter  ;  and  in, cafe,  they  cannot  be  made  good, 
by  the  laid  owner,  he  may  charge  thein  to  average  upon  the  lliip  ai^d  goods,;, 
but  if  the  faid  goods  happen  merely  by  accident  to  be  daniaged.or  entirely, 
lofl,  thefe  damages  (although  at  that  time  they  had  not  the  legal  propert.yi 
of  a  juft  average)  fhall  be  chargeable  to  grofs  average,  and  be  made  good  out 
of  the  fliip,  and  goods  in  connexion  with  them. — \_Note,  this  difagrees  with  all 
pdiei*  ordinances,   whereby,  each  owiier  feparately,  or  his  infurer,  flands.to 

his  own    rifque    in   barges,  lighters,  or  boats.] Any   damages,   whether 

accidental  or  defigned,  happening  to  the  lighter,  the  goods  in  it  are  not 
obliged  to  any  contribution,  as  there  fhall  be  no  avera^e-conneftion  betwixt 
the  lighters  and  the  goods  bringing  to  or  carrying  from  the  fhip ;  except  in 
i>n  exigency,  when  fome  goods  mUll  bd.throwti  over.rijoarjl',  ^foj-  faving  the 
lighter  and  it's  lading;  fuch  damages 'are):j^;b^^  charge^; ^^- average  toi:  the 
lighter  and  goods  faved  ;  but  the  contribution  of  the  lad^g  in  this  cafe  fhall 
xsome  in  as  grofs  average  Upon  the  lliipj  tp>vhich  the/ lighter  belongs,  and 
jiliewife -to  the  whole  remaining  cal-go;.—0?'<i?2n.'o/'iC(??a,^yS.-,flio  ii  5hjii  ionnso 

)q  4  I'i  :ui  glnsnui  .}.; — :  ■'.\iyry,'\ ■  .zjdoblo 

■  4  M  ••■        :         -■     ;.  -Sr:]-^^^ 


33©  LIVES. 

5.  See  Commencement  of  Voyage  or  Rifque,  Community,  ConJlruElion, 
Contribution,  End  of  Voyage  or  Rifque,  General  Average,  Goods,  Jettifonf 
Landing,  Rifque,  Unloading,  Ufage. 


LIMITATION. 

1.  T  T  feems  that,  by  the  common  law,  there  was  no  fixed  time  as  to  the 
■^   bringing  of  a6lions. 

2.  By  Stat.  21  Jac.  1.  c.  16.  par.  3.— All  aftions  of  account,  and  upon 
the  ccfe,  other  than  fuch  account  as  concern  the  trade  of  merchandife 
between  merchant  and  merchant,  their  faftors  or  fervants,  all  aftions  of 
debt  grounded  upon  any  lending  or  contraft  without  fpecialty,  &c.  fhall  be 
commenced  and  fued  \i\i\i\n  fix  years  next  after  the  caufe  of  fuch  aftions  or 
fuits,   and  not  after. 

3.  Remark. — It  has  been  determined  that  accounts  open  and  current 
only  are  within  the   ftatute ;  and   that  therefore,  if  an  account  be  ftated  and 

fettled  between  merchant  and  merchant,  and  a  fum  certain  agreed  to  be  due 
to  one  of  them, — if  in  fuch  cafe  he,  to  whom  the  money  is  due,  does  not 
bring  his  aftion  within  the  limited  time,  he  is  barred  by  the  ftatute. — Cun- 
ningham's Law  DiH.  tit.  Limitation,  feft.  5. In   like  manner  I  prefume 

that,  as  a  claim  on  a  policy  of  infurance  is  not  a  fum  certain  agreed,  or 
debt,  till  it  is  fettled  or  adjujled,  the  aflured  is  not  barred  by  the  ftatute, 
till  the  expiration  o^fx  years  after  fuch  adjvflment. 

4.  If  the  aflured  fhall  not  appear  to  demand  of  the  aflurer  the  amount  of 
the  lofs,  and  damages  of  the  things  infured,  within  a  year,  reckoned  from 
the  day  in  which  he  had  the  advice  of  the  faid  lofs,  or  received  the  things 
fo  averaged  ;  the  affurer  ftiall  be  judged  to  remain  free  from  paying  him  any 
thing,  by  reafon  of  the  omiftion,  and  negligence  of  the  aflured. — Ordin. 
of  Bilb. 

5.  See  Adjujlment,  Bail,  Damage,  Infurer,  Lofs,  Paymejit,  Proof  Time. 

LIVES. 

1.  TNSURANCES  on  lives  and  furvivorfliips  are  become  very  frequent, 
-*•  in  London,  and  are  unqueftionably  of  confiderable  utility  and  advantage 
to  divers  perfons,  on  various  occafions  : — fuch  as  1.  by  afligning  the  policy 
as  a  collateral  fecurity,  a  perfon  may  be  enabled  to  borrow  money,  who 
cannot  raife  it  oihcnvife : — 2.  he  may,  in  like  manner,  fecure  the  payment 
of  debts,  at  his  deceafe : — 3.  tenants  for  life,  perfons  entitled  in  reverfion  or 
remainder,  may  thereby  obviate  objeftions  to  their  own  fecurity ; — ^4.  a  man 

poflefled 


LIVES  33, 

pofTeffed  of  any  office,  employment,  or  income,  may  be  enabled  to  provide 
for  his  wife,  and  their  ifTue,  on  his  deceafe '. — 5.  they  who  have  dependencies 
on  other  perfons,  may  by  infuring  the  lives  of  fuch  perfons  provide  for  them- 
felves  at  their  deceafe  : — 6.  they  who  are  entitled  to  annuities  determinable 
upon  the  lives  of  others,  or  to  annuities  during  the  joint  lives  of  themfelves 
and  others,  may,  by  infuring  the  life  of  the  third  perfon,  fecure  to  themfelves 
an  equivalent : — 7.  a  perfon  who  is  entitled  to  an  eftate,  annuity,  or  other 
benefit,  at  the  deceafe  of  another,  may,  upon  infuring  his  own  life  againft 
fuch  other  perfon's,  raife  money  in  prefent  for  his  own  ufe,  or  fecure  an 
equivalent  for  the  benefit  of  his  family,  and  at  a  fmall  expence,  efpecially 
■where  the  life  of  the  affured  is  younger  than  that  of  the  poflefTor :— 8.  one 
who  enjoys  a  leafe,  annuity,  &c.  for  the  joint  lives  of  himfelf  and  another, 
may,  by  infuring  his  own  life  againft  the  other,  fecure  the  benefit  of  fuch 
leafe,  &c.  for  his  own  life,  or  a  fum  equivalent  thereto  : — ^9.  a  man  may 
provide  for  his  wife,  or  any  other  perfon,  after  his  deceafe,  by  infuring  his 
life  againft  the  life  of  fuch  other  perfon : — 10.  or  a  man  who  marries  a  widow 
entitled  to  a  jointure,  may  fecure  to  himfelf  the  like  income,  or  a  fum 
equivalent  thereto,  after  her  deceafe,  by  infuring  her  life  againft  his  own  : — 
11.  by  the  like  means,  a  perfon  in  poffeffion  of  an  annuity  dependent  on  the 
life  of  another,  may  guard  againft  the  extinftion  of  fuch  annuity  during  his 
own  life  ; — 12.  any  one  who  is  obligated  to  pay  a  certain  fum  of  money  at 
the  deceafe  of  another,  may,  by  infuring  fuch  other  perfon's  life  againft  his 
own,  provide  for  fuch  payment : — and  33.  one  perfon's  life  may  be  infured 
againft  another's,  at  an  annual,  or  an  abfolute  premium,  to  fecure  a  fukn  M'hen 
the  life  infured  fhall  drop. 

2.  Besides  the  private  underwriters,  who  infure  only  to  pay  a  certain 
grofs  fum  at  the  deceafe  of  the  perfon  whofe  life  is  infured,  there  are,  in 
London,  feveral  focieties  and  offices  eftabliftied  (which  are  mentioned  in  the 
references  at  the  foot  of  this  title)  where  alfo  infurances  on  lives  and 
furvivorftiips  are  made ;  but  it  is  only  the  Society  for  Equitable  Afliirances 
on  Lives  and  Survivorfhips,  that  infures  in  each  of  the  feveral  modes  above- 
mentioned,  according  to  the  conveniency  of  the  affured,  as  may  be  feen  tiilder 
title.   Equitable  Society.  j  i  i|      , 

3.  I  HAVE  inferted,  under  the  aforefaid  title,  three  feveral  tables, 
exhibiting, — 1.  the  rates  of  annual  premiums,  for  ailurances  on  njipgle  life 
for  one  year,  for  the  certain  term  oi  Jeven  years,  and  for  the  whole  conti- 
nuance of  life  : — 2.  the  rates  of  annual  premiums  for  affuring  either  s.  grofs 

fwnL,   or  an  equivalent  annuity,   upon  the  contingency  of  one  \\^<t  furviving 
•  another  : — and,  3.  the  rates  of  annual   premiums,  payable  during  the  conti- 
nuance of  two  joint  lives,  for  afluring  Vifum  to  be  paid  upon  the  extinftioia  of 
either  of  them.  !'      p, 

4.  The  value  of  infurances  upon  lives,  depends  upon  the  probability  of 
the  continuance  of  any  propofed  life  or  lives,  during  any  propofed  tertB, 

A  Table 


332 


V 


A  Table  (taken  from   Dr.  Price's  Obfervations   on    Reverfionary  Paymenis, 
&c.  page  323.)  (hewing  the  probabilities  of  life  at  Northampton. 


<n  v 


Agfs.        Perfonj  living.  Decr.of  Life.  Ages.     (  Pcrfonsliving.   Decr.ofLife.  Agf$.      I  Perfons  living. 'Decr.nf  Life 


O 
1 

2 

3 

4 

5 

6 

7 
8 

9 
10 

n 

12- 

^3 

M 

J5 
16 

57 
18 

^9 
20 

21 

22 

23 
24 

25 
26 

27 

28 

^9 
30 


1149 
849 

722 

672 

646 

625 

609 

596 
586 

577 
570 
564 
S58 
553 
548 

643 
538 

533 
528 
522 

515 

E,°7 

499 

49^ 

483 

475 
467 

459 
451 
443 
435 


300 

127 

50 
26 

21 

16 

13 
10 

9 

7 
6 
6 

5 

5 

5 

5 

5 

5 
6 

7 
8 

8 

8 

8 

8 

8 

8 

8 

8 

8 


Ages. 

Pcrfonslivuig. 

Decr.ofLife 

31 

428 

7 

32 

421 

7 

33 

414 

7 

34 

407 

7 

35 

4<K) 

7 

36 

393 

7 

37 

38,6 

7 

38 

379 

7 

39 

37^ 

7 

4a 

365 

8 

41 

.    -357 

8 

42 

349 

8 

43 

341 

8 

44 

333 

8 

45 

325 

8 

46 

3^7 

8 

47 

3^^ 

8 

48 

301 

8 

49 

293 

9 

50 

284 

9 

51 

275 

8 

52 

267 

8 

53 

259 

8 

54 

251 

8 

55 

243 

8 

56 

235 

8 

57 

227 

8 

58 

219 

8 

59 

211 

8 

60 

203 

8 

61 

195 

8 

62 

187 

8 

63 

179 

8 

64 

171 

8 

65 

163 

8 

66 

J  55 

8 

67 

147 

8 

G8 

n9 

8 

69 

131 

8 

70 

123 

8 

71 

115 

8 

72 

107 

8 

73 

99 

8 

74 

9' 

8 

75 

83 

8 

76 

75 

8 

17 

ej 

7 

78 

60 

7 

79 

53 

7 

80 

46 

7 

81 

39 

7 

82 

32 

6 

83 

26 

5 

84 

21 

4 

85 

17 

4 

86 

13 

3 

87 

10 

2 

88 

8 

2 

89 

6 

2 

90 

4 

2 

91 

2 

1 

92 

1 

1 

/4  Tk^/f  (taken  from  Dr.  Price's  '.Obfervations  on  Reverfionary  Payment.-;, 
&c.  page  339.)  fliewing  the  true  probabilities  of  life  in  London,  for  all 
ages ;   formed  from  the  bills  for  10  years,   from  1755  to  1768. 


Ages. 

Perfonsliving. 

Decr.ofLife 

0 

1518 

486 

1 

1032 

200 

2 

832 

85 

3 

747 

59 

4 

688 

42 

5 

646 

23 

6 

623 

20 

7 

603 

H 

8 

589 

12 

9 

577 

10 

10 

5^7 

9 

Ji 

558 

9 

12 

549 

8 

»3 

5i^ 

7 

M 

534 

6 

>5 

528 

6 

16 

522 

7 

Ages. 


17 
18 

^9 
20 

21 

22 

23 
24 
25 
26 

27 
28 

29 
30 
31 
32 
33 


fons  living 

Decr.ofLife. 

Ages. 

Perfonsliving. 

Decr.ofLife 

5^5 
508 

7 
7 

■  34 

35 

377 
368 

9 
9 

501 

7 

3^ 

359 

9. 

494 
487 

7 
8 

37 
38 

350 
34^ 

9 
0 

479 

.     8 

39 

33-^ 

10 

471 
463 

8 
8 

40 
41 

322 
312 

10 
10 

455 

8 

42 

302 

10 

447 

8 

43 

292 

.,10 

439 

8 

44 

282 

:o 

43' 
422 

9 
9 

4i 
46 

272 
262 

10 

10 

4^3 

9 

47 

252 

10 

404 

9 

48 

242 

9 

,395 

9 

49 

233 

9 

386 

9 

50 

2^4 

9 

Agzi 


V 


333 


Ages. 

Peifons  living. 

51 

215 

52 

206 

53 

198 

54 

55 
56 
57 
58 

190 
183 
176 
169 
162 

59 
60 

155 
147 

61 

139 

132 

63 
64 

125 
118 

8 

7 

7 

7 

7 

7 
8 

8 

7 
7 
7 
7 


Arcs. 

Pcrfons  living.! 

65 

H  1 

66 

104 

67 

97 

68 

90 

<^9 

83 

70 

76 

7» 

70 

72 

64 

73 

58 

74 

53 

75 

48 

7b 

43 

77 

38 

7 

7 

7 

7 

7 
6 

6 

6 

5 
5 
5 
5 


Ages. 

Peifons  living. 

Decr.ofLife. 

78 

33 

4 

79 

29 

4 

80 

25 

3 

81 

22 

3 

82 

19 

3 

83 

16 

3 

84 

13 

2 

85 

n 

2 

86 

9 

2 

87 

7 

2 

88 

5 

1 

89 

4 

1 

90 

3 

1 

5.  By  a  table  of  A/r.  Thomas  Simpfon;  in  his  Trcatife  of  Annuities 
retlified  after  the  tables  from  Halley  and  others,  it  appears,  p,  4  and  5,  that 
out  of  1280  new-born  infants,  410  die  within  the  firfl  year;  and  that,  of 
the  870  remaining,  170  die  within  the  fecond  year;  and  fo  on,  as  is  below 
exhibited  : — according  to  which,  the  premium  to  infure  the  life  of  a  new- 
born infant  for  one  year  would  be-J-y^§^,  or  32  yff  o  per  cent,  and  thus  the 
premium  for  a  life  of  one  year  old  appears  to  be  -^fy^^^^,  or 
cent,  and  fo  on,  as  in  the  following  Table  : — 


19  lf§  per 


No  that 
die. 

Out  of 

Of   the 

;i»c  of 

170 

870 

1 

65 

35 
20 

700 

635 

600 

2 
3 

4 

16 
13 

480 

564 

5 
6 

10 

551 

7 

9 

541 

8 

8 

532 

9 

7 

524 

10 

7 

5^7 

11 

6 

510 

12 

6 
6 

504 
498 

^3 
14 

6 
6 
6 
6 
6 

492 
486 
480 

474 
468 

15 
16 

17 
18 

^9 

7 

462 

20 

7 

455 

21 

7 

448 

22 

7 

441 

23 

8 
8 
8 

434 

426 
418 

24 

25 
26 

8 

410 

27 

Premium 
cent,    fo 
next  yea 

19 

9 
5 


1  i 


per 

No. 

Ofthe 

r  the 

that 

Ontof 

age  of 

r. 

die. 

470 

67^ 

8 

402 

28 

200 

Too 

9 

394 

29 

m 

9 

385 

3" 

9 

376 

31 

9 

367 

32 

9 

358 

33 

9 

349 

34 

9 

340 

35 

9 

331 

36 

176 

9 

322 

37 

9 

3»3 

38 

10 

304 

39 

lO 

204 

40 

10 

284 

41 

10 

274 

42 

9 

264 

43 

9 

255 

44 

9 

246 

45 

9 

237 

46 

1 1 1 

8 

228 

47 

8 

220 

48 

8 

212 

49 

8 

204 

50 

8 

ig6 

51 

8 

i88 

52 

8 

180 

53 

1    7 

172 

54 

Premium  per 

cent,  for  the 
next  year. 


1  S8 
204. 


No  that 

Of  the 

die. 

Out  of 

age  of 

7 

165 

55 

7 

158 

56 

7 

151 

57 

7 

144 

58 

7 

137 

59 

7 

130 

60 

6 

123 

61 

6 

117 

62 

6 

111 

63 

6. 

105 

64 

6 

99 

65 

6 

93 

66 

6 

87 

67 

6 

8i 

68 

6 

75 

69 

5 

69 

70 

5 

64 

71 

5 

59 

72 

5 

54 

73 

4 

49 

74 

4 

45 

75 

3 

41 

76 

3 

38 

77 

3 

35 

78 

3 

32 

79 

Premium  per 
cent,  forthe 
next  year. 


50 
TT3 


7   SS 


or 


1251 
29  rem«  of  80  y"  old  10  i" 

6.     Case.— In  June  1749,   the  defendant  had  applied  to  the  office-keeper 
broker  to  infure   i,6ool.  for  one  year  at  5  per  cent,  on  the  life  of  one 

4  N  Poulton, 


Poukon,  from  whom  the  defendant  had  agreed  to  purchafc  an  eflatc,  whereof 
Poulton  had  the  reverfion  in  fee,  and  alfo  an  intervening  eflate  for  his  own 
life  : — the  broker  anfwered  that  the  courfe  of  the  office  was,  to  produce  the 
perfon  whofe  life  was  to  be  infuredj  in  order  to  be  infpefted  by  the  infurers 
or  underwriters  :  to  which  the  defendant  repHed,  that  the  perfon  Hved  at  a 
great  diftance  in  the  country;  and  that  it  w-as  very  inconvehient  for  hint  to- 
come  to  London  ;  and  on  the  broker's  adding  the  defendant  "  whether  he  was 
a  good  life  ?"  the  defendant  anfwered,  "  he  was ;"  and  added  that  he  w^ould 
leave  a  note  of  his  name  and  place  of  abode,  which  he  accordingly  did  : — on 
this  declaration  of  the  defendant,  the  broker  procured  fixteen  perfons  to 
underwrite  a  policy  of  infurance  for  i,6ooL  on  Poulton's  life,  at  the  rate  or  pre- 
mium, and  for  the  time  before  mentioned  ;  and  about  fix  months  afterwards 
Poulton  died. — In  1750  the  defendant  brought  an  aftion  on  the  policy,  in 
the  court  of  common  pleas,  and  had  a  verdift  for  him ;  in  confcquence  of 
which  the  plaintiff,  who  was  one  of  the  underwriters,  paid  him  gSl.  as 
For  his  part  of  the  infurance-money ;  but  in  1751,  brought  his  bill  in 
the  court  of  chancery,  fuggefting  fraud  and  impofition. — The  defendant 
admitted  in  his  anfwer,  that  "  Poulton  was  a  drunken  fellozo  ;"  upon  which 
the  lord  chancellor  at  the  hearing  direfted  an  action  at  law  to  be  brought, 
which  was  done  accordingly,  and  there  was  a  verdift  for  the  plaintiff,  but  the 
jury  acquitted  the  defendant  of  fraud  :  and  the  caufe  now  coming  on  before 
the  lord-keeper  for  further  direftions,  the  queftion  M-as,  whether  the  defen- 
dant ffiould  pay  interejl  for  the  gSl.  M'hich  he  received,  and  alfo  the  colls 
in  equity  ?  and  to  prove  that  he  ought  not  to  pav  intereft,  /..  Rayin.  398, 
was  cited  ;  where  Chief  Juftice  Holt  faid,  "  intereff  is  never  given  by  the 
jury  in  fuch  a  cafe  "  [this  was  for  money  won  upon  a  xoager']^ :  and  to  (hew 
that  he  ought  not  to  pay  cofts,  3.  P.  Wms.  205,  was  cited,  where  the  lord 
chancellor  declared,   that  a  man  ought  not  to  be  punifhed  for  defending  his 

right. Lord-keeper  :   this  caufe  comes  now  before  me  after  a  verdift  for  the 

plaintiff,  and  another  verdift  for  the  defendant  at  law,  and  my  determination 
thereon  fhall  not  be  grounded  on  any  imputation  on  Sir  Crifp  Gafcoigne, 
who  is  as  worthy  a  gentleman,  and  in  as  full  credit  as  any  merchant  in 
London :  the  defendant  brought  an  aftion  at  law  in  which  he  prevailed  : 
which  made  it  neceffary  for  the  plaintiff  to  apply  to  this  court ;  the  jurifditlion 
whereof  is  concurrent  and  concomitant  with,  and  auxiliarv  to  that  of  the 
common  law  in  cafes  of  fraud  ;  to  the  end  that  all  perfons  may  have  the 
neceffary  meafure  of  juftice,  according  to  the  various  modiHcations  of  their 
rights.  I  have  conftantly  attended  at  Guildhall  during  the  laft  war,  and  was 
concerned  in  various  cafes  of  this  nature  ;  and  bv  all  the  foreign  books,  as 
well  as  our  own,  the  learning  concerning  infurances,  as  well  of  lives  as  of 
ffiips,  was  thoroughly  fettled  and  eflablifhed  :  "  every  paity  concerned  in  an 
infurance  mu{l  communicate  every  circumftance  he  knows,  in  order  to 
afcertain  the  premium ;  which  otherwife  will  be  affected,  and  the  policy 
void :" — thus,  if  a  man  comes  to  infure  a  fiiip  and  fays  ffie  was  fuch  a  day  fafe 
in  fuch  place,,  he  afferts  it  at  his  peril,  though  he  does  it  infcienter:  for 
when  you  come  to  infure,  the  perfon  you  apply  to  fuppofes  vou  to  be  a  man 

of 


V        E        S. 


335 


of  prudence  and  caution,  and  that  every  thing  you  fay  is  true  ;  becaufe 
otherwifcj  men  fhould  be  put  to  vain,  idle,  and  expenfive  purfuits,  and 
perhaps,  ,to  no  purpofe.  The  reafon  the  defendant  prevailed  at  law  was, 
that  his  declaration  did  not  appear  on  the  face  of  the  inflrument  of  infurance  : 
the  plaintiff  by  the  bill  fuggefled  a  fraud,  and  wanted  a  difcovery  in  order 
to  defend  himfelf ;  and  was  therefore  entitled  to  come  here  ;  but  at  his  peril, 
if  he  came  wantonly  ;  and  that  he  had  a  right  to  apply  to  a  court  of  equity, 
is  evident  from  the  verdift,  which  he  obtained  on  a  full  difcovery  of  all  the 
circumflances  of  the  cafe. — "  As  to  the  interejl,  I  think  it  would  be  given 
at  common  law,  where  a  man  fues  for,  recovers,  and  receives,  a  grofs  fum  of 
money  unducly ;  and  I  fhould  not  fit  here,  were  I  to  fuffer  a  man  to  receive 
a  fum  of  money  and  keep  it  without  making  any  fatisfaftion  for  the  detention 
of  it:  v.'hat  would  the  merchants  of  Lombard-Street  think  of  fuch  proceed- 
ing ? ' — It  is  objefted,  there  was  a  verdift  for,  and  another  againft  thq 
defendant ;  and  that  therefore  the  matter  is  in  equilibrio  ;  but  the  verdift 
for  him  was  the  caufe  of  the  fuit  here  ;  where  he  came  to  defend  himfelf. 
The  diftinftion  with  refpeft  to  cojls  is,  \vhere  one  of  the  parties  is  to  blame, 
in  which  cafe  the  court  may  exercife  a  difcretion. — Decreed  intereft  on  the 
gSl.  together  with  cofts. — In  Chan.  April  the  15th,  1758. — Cle eve  and  Sir 
Cnjp  Gafcoigne. 

7.  Case. — I.  S.  and  others  came  to  the  infurance-office,  and  brought  a 
policy  for  infuring  the  life  of  A.  (upon  whofe  life  they  had  no  concern  or 
tJitereJi  depending)  for  a  year,  and  the  policy  run,  "  whether  interefted  or 
not  interefted  ;"  and  the  premium  was  5  per  cent.  :  and  they  took  this  way 
to  draw  in  fubfcribers  :  they  agreed  with  M.  a  known  merchant  upon  the 
exchange,  and  a  leading  man  in  fuch  cafes,  to  fubfcribe  firft ;  but  in  cafe  A. 
died  within  the  year,  M.  was  to  lofe  nothing,  but,  on  the  contrary,  was  to 
fhare  what  fhould  be  gained  from  the  other  fubfcribers  :  upon  the  credit  of 
M.'s  fubfcribing,  feveral  others  (who  had  inquired  of  M.  about  A.  who  was 
his  neighbour)  fubfcribed  likewife  :  A.  died  in  four  months,  and  the  bill  was 
to  be  relieved  againft  this  policy  ;  and  this  matter  being  all  confcfTed  by 
anfwer,  the  policy  was  decreed  to  be  delivered  up,  and  the  premium  to  be 
paid,  the  plaintiff  deducing  thereout  his  cofls. — The  court  faid,  "  infuring 
was  firft  fet  up  for  the  benefit  of  trade  ;  that  when  a  merchant  happened  to 
have  a  lofs,  he  might  not  be  undone  by  it,  the  lofs  by  this  way  being  borne 
by  many :  but  if  fuch  ill  pra6lices  were  ufed,  it  would  turn  to  the  ruin  of 
trade,  inftead  of  advancing  it." — Prec.  in  Chan.  20.  Hil.  1690. — Wittingham 
V.  Thornborough. 

8.  Case. — A  policy  of  infurance  was  made  to  infure  the  life  of  Sir 
Robert  Howard  "  for  one  year,  from  the  day  of  the  date  thereof:"  the  policy 
was  dated  the  3d  day  of  September  1697  :  Sir  Robert  died  on  the  third  day 
of  September  1698,  about  one  o'clock  in  the  morning:  and  by  Holt,  chief 
juftice,  in  an  adtion  hereupon,  it  was  ruled  at  the  fittings  at  Guildhall,  ift, 
that /row  the  day  of  the  date  excludes  tHe  day,  hyxlfrom  the  date  includes  it. 


336  L        I        V        E        S. 

fo  that  the  day  of  the  date  is  fexcluded  :  2dly,  that  the  law  makes  ho  fradion 
in  a  day ;  yet  in  this  cafe,  he  dying  after  the  commencement,  and  before 
the  end  of  the  laft  day,  the  infurcr  is  liable,  becaufe  the  infurance  is  for  a 
year,  and  the  year  is  not  complete  till  the  day  be  over  :  yet  if  A.  be  bbrn 
on  the  third  day  of  September,  and  on  the  2d  day  of  September  twenty-one 
years  afterwards  he  makes  his  will,  this  is  a  good  will ;  for  the  law  will  make 
no  fraftionof  a  day,  and  by  confequence  he  was  of  age. — 2  SalL  625.  Trin. 
11.  W.  3. — Sir  Robert  Hoicard's  Cq/e, — S.  C.    L.  Raym.  480. 

9.  By  Sta;t.  \.\_Geo.  3.  c.  48.  f.  1. — No  intui-ance  fliall  be  made  by  any 
perfon  or  perfons,  bodies  politic  or  corporate,  on  the  life  or  lives  of  any 
perfon  or  perfons,  or  on  any  other  event  or  events  whatfoever,  wherein  the 
perfon  or  perfons,  for  whofe  ufe,  beneiit,  or  on  whofe  account  fuch  policies 
fhall  be  made,  fliall  have  no  interejl,  or  by  way  of  gaming  or  wagering  ;  and 
every    allurance  made,    contrary  to    the  true    intent    and  meaning  hereof, 

fhall  be  null   and  void,  to  all   intents  and  purpofes   whatfoever. S.  2.  It 

fhall  not  be  lawful  to  make  any  policy  or  policies  on  the  life  or  lives  of  any 
perfon  or  perfons,  or  other  event  or  events,  without  inferting  in  fuch  policy 
or  policies  the  perfon  or  perfon's  7iame  or  names  interefted  therein,  or  for 
whofe  ufe,  benefit,  or  on  whofe  account  fuch  policy  is  fo  made  or  underwrote. 

S.  3.  In  all  cafes  where  the  infured  hath  intercft  in  fuch  life  or  lives, 

event  or  events,  no  greater  fum  fhall  be  recovered  or  received  from  the 
infurer  or  infurers  than  the  amount  or  value  of  the  interejl  of  the  infured  in 
fuch  life  or  lives,  or  other  event  or  events. 

10.  Case. — (Drawn  by  Mr.  Thoresby,  attorney  for  the  infurefs).     "  A. 

was  tenant  for  life  of  a  confiderable  eflate  in  the  Weft-Indies,   which  after  his 

death  devolved  to  his  fifter  C.  the  wife  of  D  : — ^A.  fince  the  making  of  the 

flatute,  for  regulating  infurances  upon  lives,  in  the   14th  of  the  prefent  king. 

went  to  the  Weft-Indies,  in  his  way  to  America,  to  join  the  military  corps  in 

which  he  was  a  commiftioned  officer. — In  A.'s  abfence,  his  xoife  B.  caufed  a 

policy  of  infurance,  for  5,oool.  to  be  effefted  on  her  hufband'.'?   life,    for  one 

year;  Avhich  policy  was  filled  up  in  the  name  of  E.  as  the  allured,  though  E. 

only  was  employed  as  the  broker  to  effecl  the  fame  ;  but,  it  feems  that,  after 

this  infurance  was  thus  effefted,  E.  figned  an  endorjhnent  thereon,  declaring  it 

to  be  made  by   the  order,  and  for  the  account  and  benefit  of  the  faid  .6.-— The 

policy  is  in  the  ufual  form,   there  not  being  any  declaration  of  any  particular 

interejl  infured  thereby.     A.  died  within  the  time  limited  by  the  policy,   for 

which  his  life  was   infured. — The  underwriters  have,    fince  the  death    of  A. 

been  called  upon   for  payment  of  the   lofs  ;    but  they  have   refufed  to   pay 

without  proof  of  interefl  is  given  them,  as  required  by  the  faid  aEl  of  the  1 4th 

of  the    prefent  king. — There  feems  likewife  another  objeflion  to  arife    to 

this  policy,  under  the  faid  aft  of  parliament,  which  is,  that  the  name  of  B. 

the  perfon  now  pretended  to  be  interefted  therein,  is  not  inferted  therein, 

agreeable    to    the  fecond  claufe   in  that  aft. — The  way    in  which   B,   now 

attempts  to  make  out  an  interefl  in  the  life  of  A.  is,  by  pretending  that  flio 

had 


LIVES.  337 

had  a  natural  intereft  in  her  hufband's  life  ;  that  in  his  life-time  Ihe  (B.)  lived 
in  affluence;  whereas,  fince  his  death,  fhe  has  but  an  income  of  500I.  per 
annum,  being  an  annuity  payable  to  her  by  D.  the  hulband  of  C.  for  B.'s  life  ; 
which  is  by  no  means  adequate  to  the  genteel  way  of  life  fhe  appeared  in 
during  A.'s  life-time  : — but  the  underwriters  infill,  that  this  is  not  fuch  an 
intereft  as  tiie  faid  ftatute  requires ;  for,  that  it  meant  a  pecuniary  intereft  in 
the  life  infured,  fuch  as  an  annuity  depending  thereon,  &c.  &c.  whereas,  in 
the  prefent  cafe,  it  feems  the  contrary ;  for  by  the  death  of  A.  B.  became 
entitled  to  the  500/,  per  annum. — Query,  under  the  circumftances  of  this 
cafe.  Whether  the  faid  policy  of  infurance,  made  as  ftated  in  the  cafe,  is  good 
or  not;  if  not,  why  not?  and,  whether  the  underwriters  are,  or  not,  and 
why,  or  why  not,  liable  to  pay  the  lofs,  under  the  faid  policy,  without  any 
other  proof  of  interejl.  than  fuch  as  is  fet  up  by  B.  ?  and,  if  they  are  not  liable 

to  the  lofs,  whether  they  muft  pay  back  the  premium  ?" Mr.  Wallace's 

Opinion.  "  I  am  of  opinion  the  policy  of  affurance  above  ftated  falls  within 
the  prohibitions  of  the  latejlatute,  and  is  void  :  the  interejl  mentioned  in  the 
aft,  as  an  obje6l  of  infurance,  muft  be  capable  of  being  eftimated  and  a/cer- 
tained ;  and,  not  an  imaginary  intereft,  like  that  fet  up  in  the  prefent  cafe  : 
for,  by  the  o^dfctlion,  no  greater  fum  is  to  be  recovered  than  the  amount  or 
value  of  the  intereft  of  the  infured  in  the  life.  If  B.  had  an  infurable 
intereft,  yet  I  am  of  opinion  the  policy  is  void,  by  force  of  the  lAfeElion.  I 
conceive  the  underwriters  muft  pay  back  the  premium,  as  they  have  not  run 
any  rifque,  and  the  objeftion    to  the   policy  not   being  grounded  on  any 

fraudulent  conduft  in  the  affured." Mr.  Dunning  s  Opinion.     "  The  aft  of 

parliament  (14  Geo.  3.)  was  made  to  fupprefs  gaming  policies.  I  fee  no 
reafon  to  confider  the  policy  in  qucftion  in  that  light.  I  think  it  cannot  be 
objefted  to  for  want  of  interejl ;  for  an  infurance  for  the  benefit  of  a  married, 
xooman,  I  take  to  be,  in  law,  an  infurancey^r  the  benefit  of  her  hufband ;  and 
a  man  cannot  well  be  faid  to  be  uninterefted  in  his  own  life  :  but  the  other 
objeftion,  if  the  underwriters  think  lit  to  avail  themfelves  of  it,  feems  to  be 
founded  in  the  provifion  which  requires  it  fliall  be  inferted  in  the  policy  for 
xvhofe  benefit  it  is  intended ;  and  the  intention  of  that  provifion,  perhaps,  is 
not  fatisfied  by  an   endorfement,  to  which  I  prefume  the  underwriters  were 

not  privv." Mr.  Wallace,  however,  being  foon  afterward  of  counfel  with 

Mr.  Dunning,  argued  for  the  plaintiff,  and  againft  his  aforefaid  opinion  : — 
Mr.  Bearcroft  with  Mr.  Davenport,  for  the  defendants,  the  underwriters  : 
who  reafoned  thus ; — that  if  a  wife,  or  other  relative,  can  infure  the  life  of 
a  hufband,  &c.  without  being  obliged  to  prove  a  certain  fpecific  "  amount, 
or  value f  as  loft  by  the  alfured,  and  depending  on  the  event  of  the  deceafe  ; 
then  there  can  be,  in  fuch  cafe,  no  other  rule  of  efimating  the  "  amouiit  or 
value  of  the  interejl  f  as  required  by  the  aS,  than  ihe  fum  infured  on  the 
policy  ;  which  might  go  to  ioo,oool. ;  to  which  there  could  lie  no  more 
objeftion  than  to  5,000!.  ;  and  yet  it  would  certainly  be  "  gaming:" — that  it 
was  prefumable,  that  the  annuity  of  500I.  per  ann.  in  this  cafe,  provided  for 
the  wife,  by  the  hufband,  to  commence  at  his  deceafe,  was  deemed  by  him  a 
fufficicnt  future  provifion  for  her ;    and  this  fpecial  fettlcment  deftroyed  the 

4  O  general 


338 


S. 


general  argyimeni  o^  a  \v\[cs  natural  intereft;  which  can  only  confift  in  a 
decent  maintenance,  according  to  rank  ;  and  rendered  any  infu ranee  on  the 
hufband's  hfe,  in  order  to  gain  a  further  fortune,  and  to  an  unliviited  amount, 
a  "  fpeculating,  or  gaming  pohcy  ;" — that  the  argument  of  "  an  infurance  on 
a  hufband's  life,  made  by  a  married  woman,  for  her  own  benefit,  being,  in 
law,  an  infurance  for  the  benefit  of  her  hii/band"  is  a  very  flrained  one ;  nor 
can  the  words  of  the  aft,  which  fays,  "  no  infurance  fhall  be  made  by  any 
perfon,  by  way  of  gaming ;  and  no  go-eater  fum  fhall  be  recovered  than  the 
amount  or  value  of  the  interefl,"  well  apply  to  fuch  an  idea  ;  cfpecially  to  an 
unaj'certainable,  unlimited,  pecuniary  amount : — that  the  premiums  which  it 
would  be  requifite  to  pay,  annually,  for  fuch  an  infurance  of  a  large  amount, 
might  not  be  deemed,  by  a  hufband  himfelf,  either  very  beneficial,  or  very 
pleafmg  to  him ;  efpecially  if  paid  'without  his  confent ;  and  whilft  he  had 
aftually  made  a  future  provifion  for  his  wife : — and  that,  if  this  reafoning 
were  not  juft,  the  Jlatute  is  of  but  little  reflraint ;  and  numerous  gaming 
policies  might  flill  be  made. — But,  a  verdi6l  was  diretled  for  the  plaintiff. — • 
Before  Ld.  Mansfield  at  Guildhall ;  Sitt.  aft.  Eaft.  1777. — Mary  Spencers  cafe. 


{ 


11.  Case. — Davis  had  various  dealings  in  trade  with  Robert  Campbell, 
who  was  a  contractor  with  the  commiffioners  for  new  paving  the  cities  of 
London  and  Weftminfter  ;  and  they  affifted  each  other  from  time  to  time 
with  their  notes  of  hand,  bonds,  &c.  merely  to  raife  money,  till  there  was  a 
large  account  current  between  them,  the  balance  of  which  Davis  fwore  was 
due  to  him,  at  the  time  of  the  deceafe  of  Campbell,  to  the  amount  of  about 
2,400].  which  he  had  infured  on  Campbell's  life,  who 'died  infolvent  within  tlie 
terra  of  the  policy : — the  infurers  objefted  to  the  nature  of  the  interejt,  as 
being  uncertain,  and  not  within  the  meaning  of  the  flat.  14  Geo.  3. ;  for  that 
if  Campbell  had  lived,  the  money  (if  really  due)  might  have  been  loft  by  his 
infolvency,  and  on  the  contrary,  after  his  deceafe,  his  affairs,  when  liquidated, 
might  admit  of  his  creditors  being  paid  in  full,  or  in  part : — but  a  verdict 
was  direfted  for  the  plaintiffs. — At  Guildhall  before  Ld.  Mansfield,  Mich.  1779. 
— AIP$nees  of  Davis  v.  Broion. 

12.  Without  leave  of  the  fenate,  no  affu ranee,  fecurity,  or  wager,  fliall 
be  made  or  given  upon  the  life  of  the  pope,  or  upon  the  life  of  the  emperor, 
nor  upon  the   lives  of  kings,   cardinals,    dukes,    princes,    bilhops,   or  other 

eminent  pcrfons,  either  fpiritual  or  temporal. — Ordin.  of  Genoa. Infurance 

may  not  be  made  on  the  lives  of  any  perfons. — Ordin.  of  France. — of  Ani/L 
—of  Rott.—oJ  Middleb.—of  Bilb. 


13.     Policy  by  the  governor  and  company  of  the  London- Afar ance,  for 
the  life  of  a  perfon. 


1 


N  the  name  of  God,  Amen, 
allurance,  and  caufe 


life 


aged 


do  make 

to  be  alTurcd  upon  natural 

for  and  during  the  term  and  fpacc  of 

calendar 


LIVES.  o'^rj 

calendar  months,  to  commence  this  day  of  in  the   year  of  our 

Lord,  one  thoufand  feven  hundred  and  and  fully  to  be  complete  and  ended. 

And  it  is  declared,  that  this  affurance  is  made  to  and  for  the  ufc,  benefit,  and  fecurity  of 
the  faid  executors,  adminiftrators,   and  alTigns,   in  cafe  of  the  death  of 

the  faid  within  the  time  aforcfaid,   which  the  above  governor  an 

company  do  allow  to  be  a  good  and  fufficient  ground  and  inducement  for  the  making  this 
affurance,  and  do  agree  that  the  life  of  h  the  faid  is   and   fliall 

be  rated  and  valued  at  the  fum  affured :  the  faid  governor  and  company  therefore,  for  and 
in  confideration  of  per  cent,  to  them  paid,  do  affure,  affume,  and  promife, 

that  h  the  faid  fhall,    by  the  permilTion  of  Almighty  God,   live, 

and  continue  in  this  natural  life,  for  and  during  the  faid  term   and  fpace  of 
calendar  months,  to  commence  as  aforefaid  ;    oi-   in  default  thereof,   that  is  to  fay,   in  cafe 
b  the  faid  fhall  in   or  during  the   faid  time,   and  before  the  full 

end  and  expiration  thereof,  happen  to  die,  or  deceafe  out  of  this  world  by  any  way  or 
means  whatfoever,  that  then  the  above-faid  governor  and  company  will  well  and  truly 
fatisf)-,  content,    and  pay  unto  die   faid  h  executors,   adminiftrators,   or 

alTigns,  the  fum  or  fums  of  money  by  them  alTurcd,  and  here  underwritten.  Hereby 
promifing  and   binding   thcmfelves  and    their  fuccefTors  to  the  affured,    h  executors, 

adminiftrators,  and  afTigns,  for  the  true  performance  of  the  premifes,  confefTing  themfelves 
paid  the  confideration  due  unto  them  for  this  affurance  by  the  affured.  Provided  always, 
and  it  is  hereby  declared  to  be  the  true  intent  and  meaning  of  this  affurance,  and  this 
policy  is  accepted  by  the  faid  upon  condition   that  the  fame  fliall  be 

utterly  void  and  of  no  effeQ,  in  cafe  the  faid  fhall  exceed  the  age  of 

or  fliall  voluntarily   go  io  fea,  or  into  the   -wars,    by  fea   or    land,    M'ithoiit 
licence  in  writing  firft  had  or  obtained  for  h  fo  doing,  any  thing   in  thefe  prefents  to 

the  contrary  hereof  in  any  wife  notwithftanding.     In  witnefs  whereof  the   faid  governor 
and  company  have  caufed  their  common  feal  to  be  hereunto  affixed,  and  the  fum  or  fums 
by  them  afllired  to  be  here  underwritten,  at  their  office  in  London,  this 
day  of  in  the  year  of  the  reign  of  our  fovereign  Lord 

by  the  grace  of  God,  of  Great-Britain,  France,  and  Ireland,  king,  defender  of  the  faith, 
&c.  and  in  the  year  of  our  Lord,  one  thoufand  feven  hundred  and 

The  faid  governor  and  company  are  content  with  this  affurance  for£' 

14.  Remarks. — The  prohibition,  conformable  to  the  afore-mentioned 
ordinances,  is  not  a  new  law,  in  France ;  fince  the  Guidon,  c.  16.  art.  5.  in 
obferving  tliat  this  fort  of  infurance  was  pra6lifed  amongft  other  nations, 
declares  that  it  was  prohibited,  in  France,  to  infure  the  lives  of  perfons,  as 
contra  bonos  mores,  and  capable  of  giving  room  to  an  infinity  of  abufes  and 
frauds ;  by  reafon  of  which,  thofe  other  nations  have  alfo  been  obliged  to 
abolilli  and  prohibit  the  practice  :  which,  however,  w'as  not  done   at  the  time 

of  the  ordinance  of  I'lV/Z'ii'v. All  ordinances  allow  infurances  to  be  made 

on  the  lives  of  captives  in  flavery  ;  but  to  fubfifl  no  longer  than  the  bondage 

does,  or  'till  the  perfon  be  redeemed. Underwriters  fhould  enquire  into 

tlie  motives  for  making  infurance  on  a  life  ;  as  alfo  the  nature  and  reality  of 
tlie  intereft,  the  fituation,  age,  conftitution,  way  of  living,  and  employment  of 

the  party  whofe  life  is  propofed  to  be  infured. To   obviate   the  difficulty 

which  occurred  in  the  afore-mentioned  cafe  of  Sir  Robert  Howard,  it  is  now 
ufual  to  infert  in  policies  on  lives,  and  other  infurances,  made   for  a  certain 

time, 


340  L  O  ND  ON  -  AS  S  U  R  A N  C E  -  C  O  M  P  A  N  Y. 

time,  the  following  words,  viz.  "  the  firjl  and  lojl  days  included.'' With 

refpefl  to  the  nature  of  the  intereji,  it  fhould  feem  that  a  very  flight  matter 
takes  the  poHcy  out  of  the  reflriftion  by  the  flat,  of  14  Geo.  3,  according 
to  Ld.  Mansfield's  afore-mentioned  determinations  upon  it. 

15.  See  Prelim.  Difc.  55,  ^6.  Amicable  Society,  Bankrupt,  Captives,  Court  of 
Policies  of  AJJurance,  Equitable  Society,  Event,  Hamburgh,  London  Afjurancc- 
Company,  Lofs,  Return,  Royal- Exchange  Affurance-Company,  Society,  Time, 
Wager. 

LOADING      PORT. 

See   Commencement  of  Voyage  or  Rif que,   Newfoundland,  Wages. 

LONDON    ASSURANCE    COMPANY. 

1.     AN  account  of  the  rife,    terms  of  the  charter,   and  progrefs  of  this 
-^J^    corporation,  is  inferted  under  title,    Company: — alfo  the  forms  of 
it's  refpeftive  policies  under  the  heads  referred  to  below. 

2.  Proposals  by  the  Corporation  of  the  London- Affurance,  eflabliflied 
by  his  majefty's  royal  charter,  for  afluring  houfes  and  other  buildings,  goods, 
wares,  and  merchandife,  from  lofs  or  damage  hy  fre,  and  for  alluring  lives  : 

at  their  houfe  in  Birchin-Lane,  Cornhill. They  afl'ure  houfes  and  buildings, 

houlhold  furniture  (wearing  apparel  by  fpecial  agreement)  and  goods,  wares, 
and  merchandife,  being  the  property  of  the  aflured,  or  on  commiflion, 
glafs  and  china  ware,  not  in  trade,  and  all  manner  of  writings  (except  books 
of  accompts,  notes,  bills,  bonds,  tallies,  ready  money,  jewels,  plate,  pictures, 
gunpowdei",  hay,  flraw,  and  corn  unthraflied)  from  lofs  or  damage  by  fire  ;  upon 
the  following  terms  and  conditions,  viz — i.  This  corporation  will  aflure  all 
manner  of  buildings  having  walls  of  brick  or  flone,  and  covered  with  flate, 
tile,  or  lead,  wherein  no  hazardous  trades  are  carried  on,  nor  any  hazardous 
goods  depofited,  at  the  annual  premiums,  fet  down  under  the  head  of  common 
afl'urances,  in  the  table  No.  1.;  and  goods  and  merchandife  not  hazardous, 
in  brick  or  flone  buildings,  after  the  fame  rate  ;  —2.  for  the  accommodation 
of  fuch  perfons  as  are  defirous  of  being  affured  for  a  term  of  years,  tliK 
corporation  will  afllire  (on  fuch  buildings  or  goods  as  aforefaid)  any  fum  not 
exceeding  i,oool.  at  the  rate  of  twelve  (hillings  percent,  {or  feven years,  and 
as  far  as  2,oool.  at  the  rate  of  fourteen  fliillings  per  cent,  for  the  like  term  of 
feven  years,  without  fubjefting  the  affured  to  any  calls  or  contributions  to 
make  good  lolfes  : — 3.  affurances  on  buildings  and  goods,  are  deemed 
diftinti  and  feparate  adventures ;  fo  that  the  premium  on  goods  is  not 
advanced  by  reafon  of  any  affurance  on  the  buildings  wherein  the  goods  are 
kept ;  nor  the  premium  on  the  buildings  by  reafon  of  any  affurance  on  the 
goods: — 4.    timber  or  plaifter  buildings,   covered  with  flate,   tile,  or  lead, 

wherein 


L  O  N  D  O  N  -  A  S  S  U  R  A  N  C  E  -  C  O  M  P  A  N  Y4  341 

•n-herein  no  hazardous  trades  are  carried  on,  nor  any  hazardous  goods 
depofited ;  and  goods  or  merchandife  not  hazardous,  in  fuch  buildings,  may 
be  aflUred  at  the  annual  premiums,  fet  down  under  the  head  of  hazardous 
afTurances  in  table  No.  2  : — 5.  hazardous  trades,  fuch  as  apothecaries,  bread 
and  bifcuit  bakers,  colourmen,  fhip  and  tallow  chandlers,  inn-holders  and 
flable-keepers,  carried  on  in  brick  or  ftone  buildings,  covered  with  flatc,  tile, 
or  lead ;  and  hazardous  goods,  fuch  as  hemp,  flax,  pitch,  tar,  tallow,  and 
turpentine,  depofited  in  fuch  buildings,  may  be  allured  at  the  annual 
premiums,  fet  down  under  the  head  o^  hazardous  afTurances,  in  the  aforefaid 
table  No.  2  : — 6.  any  of  the  aforefaid  hazardous  trades  carried  on,  or 
hazardous  goods  depofited  in  timber  or  plaifter  buildings,  earthen,  glafs,  and 
china  ware  in  trade,  and  thatched  buildings,  or  goods  therein,  may  be 
afTured  at  the  annual  premiums  fet  down  under  the  head  of  double  hazardous 
affurances,  in  table  No.  3  : — 7.  deal-yards,  alfo  chymifts,  diftillers,  fugar- 
bakers,  maltfters,  or  any  other  affurances,  more  than  ordinarily  hazardous, 
by  reafon  of  the  trade,  nature  of  the  goods,  narrownefs  of  the  place,  or  other 
dangerous  circumftances,  may  be  made  by  fpccial  agreement : — 8.  two 
dwelling-houfes,  or  any  one  dwelling-houfe,  and  the  out-houfes  thereunto 
belonging,  or  any  one  dwelling-houfe,  and  goods  therein,  may  be  included  in 
the  fum  of  200I. ;  but  when  feveral  buildings,  or  buildings  and  goods  are 
affured  in  the  fame  policy,  the  fum  affured  on  each  is  to  be  particularly 
mentioned : — g.  to  prevent  frauds,  if  any  buildings,  or  goods  affured  with 
this  corporation  are,  or  fhall  be  affured  with  any  other  corporation  or  fociety, 
the  policy  granted  by  this  corporation  is  to  be  null  and  void,  unlefs  fuch 
other  affurances  are  allowed  by  indorfement  on  the  policy  : — 10.  no  policy 
is  to  be  of  any  force,  till  the  premium  for  one  year  is  paid ;  and  for  all 
fubfequent  annual  premiums,  the  affured  are  to  take  receipts,  (lamped  with 
the  feal  of  the  corporation,  no  other  being  allowed  of: — 11.  no  policy  is 
to  be  extended,  or  conftrued  to  extend  to  the  affurance  of  any  hazardous 
buildings  or  goods,  unlefs  they  are  exprefsly  mentioned  in  the  policy,  and 
the  proper  premium  for  fuch  affurances  be  paid  for  the  fame: — 12.  no  lofs 
or  damage  by  fire,  happening  by  any  invafion,  foreign  enemy,  or  any  military 
or  iifurped  poioer  \\-\-\?iX.{ot\'er,  is  to  be  made  good  : — 13.  all  perfons  affured 
by  this  corporation,  are  upon  any  lofs  or  damage  by  fire,  forthwith  to  give 
notice  thereof,  by  letter,  or  otherwife,  to  the  direftors  or  fecretar)',  at 
their  houfe  in  London  ;  and  within  fifteen  days  after  fuch  fire,  deliver  in  as 
particular  an  account  of  their  lofs  or  damage  as  the  nature  of  the  cafe  will 
admit  of,  and  make  pYoof  of  the  fame,  by  the  oath  or  affirmation  of  them- 
felves,  their  domeflicks,  or  fervants,  or  by  their  books  of  accounts,  or  other 
proper  vouchers,  as  fhall  be  required  ;  and  alfo  to  procure  a  certificate  under 
the  hands  of  the  mlnifter  and  church-wardens,  together  with  fome  other 
refpeftable  inhabitants  of  the  parifli,  not  concerned  in  fuch  lofs ;  importing, 
that  they  are  well  acquainted  with  the  charafter  and  circumflances  of  the 
fufferer  or  fuffercrs  ;  and  do  know,  or  verily  believe,  that  he,  flie,  or  they, 
have  really,  and  by  misfortune,  fuRained  by  fuch  fire,  the  lofs  and  dampge 
therein    mentioned  ;    and    in    cafe    anv    difference    fhall   arife    between    the 

4  P  corporation 


342  LONDON-ASSURANCE-COMPANY. 

corporation  and  the  afTured,  touching  any  lofs  or  damage,  fuch  difference 
fhall  be  fubmitted  to  the  judgment  and  determination  of  arbitrators  indif- 
ferently chofen,  whofe  award  in  writing  fliall  be  conclufive  and  binding  to  all 
parties  ;  and  when  any  lofs  or  damage  is  fettled  and  adjufted,  the  fufferer  or 
fufferers  are  to  receive  immediate  fatisfaftion  for  the  fame  : — 14.  in  adjufting 
loffes  on  houfes,  no  wainfcot,  fculpture,  or  carved  work,  is  to  be  valued  at 
more  than  three  {hillings  per  yard. — N.  B.  There  is  no  average  claufe  in 
the  policies  of  this  corporation,  but  the  affured,  in  cafe  of  lofs,  receive  the 
full  damage  fuflained,   dedufting  only  three  per  cent,   according  to  the  terms 

of  the  policy. Perfons  affured  by  this  corporation  do  not  depend  upon 

an  uncertain  fund  or  contribution,  nor  are  they  fubje6l  to  any  covenants  or 
calls  to  make  good  loffes  which  may  happen  to  themfelves  or  others  ;  the 
capital  (lock  of  this  corporation  being  an  unqueflionable  fecurity  to  the 
afliired  in  cafe  of  lofs  or  damage  by  fire,  and  in  cafe  of  fuch  lofs  or  damage 
the  aflured  have  as  eafy  methods  of  recovery  as  can  be  had  againil  any 

perfon  or  fociety  whatfoever. For  the   timely  affiftance   of  fuch  as   are 

aflured  by  this  corporation,  they  have  provided  feveral  engines  and  water- 
men, with  proper  inftruments  to  extinguifh  fires,  and  porters  for  removing 
goods,  all  clothed  in  green  ;  and  having  every  one  a  badge,  with  the  figure 
of  Britannia,  holding  a  harp,  and  fupported  by  the  London  arms,  to  diflin- 
guifh  them  from  fervants  belonging  to  other  offices,  and  the  badges  are  all 
numbered ;  of  which  all  perfons  are  defired  to  take  notice,  who  intruil  them 
with  goods,  or  have  any  complaint  to  make :  and  the  fame  figure  as  on  the 
badges  will  be  affixed  on  buildings,  &c.  aflured  by  this  corporation. 

3.     Table  o'l  Annual  Premiums  to  be  paid  for  Fire  Affurances. 
No.  1 .     Common  AJfaranccs. — Not  exceeding  200I.  at  4s.  per  ann. 

Any  fum  C       200I.  )       ,  j-       ^  i,oooI.  at  2s.  ) 

{  i  ,    >  not  exceeding  ;     '  ^ ,     ?    per  cent,  per  annum, 

above    (    l,oool.  )  (  3,000!.  at  2s.  od.   ) 

No.   2.     Hazardous  AJfarances. — Not  exceeding  200I.  at  6s.  per  annum. 

s       r      (      200I.  ^  f  i.oool.  at  5s.  ^ 

y   '"^  J  loool.  >  not  exceeding  <  2, oool.  at  4s.  >  per  cent,  per  annum. 

3.DO\  C      J  I     \  /  I       *.  \ 

C  2, oool.  J  C  3,0001.  at  5s. .; 

No.  3.     Double  Hazardous  AJJurancei. — Not  exceeding  200I.  at  10s.  per  annum. 

Anvfumt      200I.  ?  ,.       ^  i.oool.  at  f;s.         ) 

;  •<  ,    >  not  exceeding  <  ,  C3  c  per  cent,  per  annum, 

above    I   1,0001.  )  '='  ^  2,0001.  at  7s.  od.  ^  ^  '^ 

N.  B.     Any  larger  fums,    and  fome  of  the  goods  excepted  in  the  preamble,  may  be 
alfured  by  fpccial  agreement. 

4.  This  corporation  is  alfo  ready  to  affure  the  life  or  lives  of  any  perfon 
or  perfons  vv^homfoever,   on  reafonable  terms. 

5.  See   Bottomry,    Chamber  of  Afjiirance,  Company,  fire.  Lives ,^  Policy, 
Society. 

LOSS. 


;  »- 


[    343   '] 
LOS        S. 

1.  QUPPOSING  a  fliip  that  is  put  up  at  London  for  Lifbon,  and 
^  infurance  made  on  the  fame  at  and  from  London,  for  i,oool.  fhould, 
by  the  floating  of  ice,  or  other  accident,  be  fo  much  damaged,  that  the 
repairs  may  amount  to  lool.  which  the  infurers  paid  before  her  departure  : 
now  the  queflion  is,  if  that  fliip  fliould  afterwards  happen  to  be  lo/i  on  her 
voyage  to  Lifbon,  whether  the  aflurers  are  to  pay  only  the  remaining  900I.  or 
the  full  ijOOol.  ?  The  anfwer  is,  if  the  infured  has  charged  the  aflurer  in  the 
account  of  the  tool,  average,  with  a  proportionable  premium,  then  he  is 
only  liable  to  the  payment  of  C)Ool. ;  but  otherwife  he  is  anfwerable  as  well 
for  the  repairs  of  the  fliip,  as  for  her  fafety  till  flie  arrives  at  Lifbon  in  a 
condition  to  be   worth   i,oool. :    confequently  he  ought   to  pay  that   full  fum 

if  fhe  be  loft  on   her   faid  voyage. There  are   likewife  fome  examples, 

wherein  cuftom  and  precedents  alone   can  decide.     As  for  inftance  :    in  the 
cafe  of  a  Danifli  fliip,  the  Little  Benjamin,  Capt.  Carften  Neufchilling,  which, 
on  her  voyage    from  Hamburgh  for  Cadiz,   was  flopped  at   Dover,  before 
any  fettlement  or  repartition  of  the  charges  was  made  at  Hamburgh,  neither 
had  any  declaration  been  made  to  the  infurers,  that  no  premium  of  infurance 
was   intended  to  be   charged  to  them :   yet  as  it  appeared  from  all  former 
accounts  fent  by  the  merchants   at    Hamburgh  in  relation   to   other   fhips 
detained   in  England,  that  neither   their  agents,  who   difburfed  the  money, 
nor  thofe    immediately  concerned,  did  ever   charge    the  infurers   here  with 
any  premium  of  infurance  ;  this  therefore  was  alone  fuflicient  to  condemn  the 
infurers  likewife  in  this  cafe  to  pay  the  charges  of  reclanning,  in  proportion 
to  their  fliares,  befides  the  full  lofs  due  on  the  fliip's  being  caft  away  ;    and  it 
would  have  been  an  injuftice  done  to  the  infured,  had  it  not  been  fo  fettled. 
—1  Mag.  159. 

2.     Before  the  conclufion  of  the  late  war  with  France  and  Spain,   there 
was  in  all  policies  of  infurance  a  printed  claufe,  whereby,  "  in   cafe   of  lofs 
the  affureds  were  to  abate  two  pounds  per  cent."     I  apprehend  the   original 
intention  of  it  to   have    been  the   fame  as  that  of  fome  foreign  ordinances, 
which  oblige  the  affureds  themfelves  to  run  a  certain  proportion  of  the  rifque, 
and    to  fuffer  fuch  a  proportion  of  lofs,  with  the  underwriters,  in    cafe  of 
accidents;  thereby  fecuring  the  more  good  faith  on  the  part  of  the  aflureds: 
— however,  notwithftanding  the  aforefaid  claufe,  the  merchants  then  thinkintr 
they  had  a  legal  right  in  this  country  to  fecure,  if  they  chofe  it,  whatever  fum 
they  were   liable  to  lofc;,  generally  included    the   faid  abatement  of  two  per 
cent,  (as  well  as  the  premium,  and  half  per  cent,  brokerage  for  recovering  a 
lofs)  in  the  calculation  of,  or  making  up  the  intereft  ;  and  accordingly  infured 
luch    a  fum   as  was    fufficicnt  to    receive  net,  in  cafe  of  lofs,    the  vjliole  of 
their  rifque  : — therefore,   the  former   cuftom  of  abating  two  per  cent,  ceafed 
with  the    late    war,    and   the    faid   claufe    has    ever   ftnce   been   omitted. — 
There  is,  however,  a  queflion  relative  to  another  circumftance,  w^hich  I  have 

fomctimes 


344  LOS        S. 

fometimes  feen  agitated  with  fome  warmth,  viz.  Whether  a  proprietor  of 
goods  infured,  refiding  in  a  diftant  place,  and  confequently  obliged  to  employ 
a  correfpondent  to  procure  infurance  for  him,  has  a  right,  in  making  up  his 
intereft,  in  cafe  of  lofs,  to  include  the  covimiffion  of  two  per  cent,  which  lie 
muft  pay  his  correfpondent  for  recovering  fuch  lofs  ? — Or,  whether  he  fliould 
not  himfelf  fuffer  that  deduftion,  on  the  idea  that  fuch  commiflion,  is  no 
part  of  the  fum  or  intereft  originally  in  rifque,  but  is  only  a  charge  incurred 
Jubfequently  to  the  lofs,  and  paid  for  the  recovery  of  it  ? — >I  am  of  opinion, 
that  whatever  fum,  upon  a  juft  calculation,  the  affured  is  liable  to  lofe,  or 
muft  necejfarily  pay  in  confequence  of  a  lofs,  in  order  to  recover  the  value 
of  his  property,  he  has  a  juft  and  equitable  right  to  infure,  and  to  be 
indemnified  for  by  the  infurer : — the  afore-mentioned  abatement  of  2  per 
cent,  (according  to  foimer  cuftom)  was  to  be  made  fubfequent  to  a  lofs,  and 
upon  the  recovery,  or  adjuftment  of  it ;  the  cuftomary  brokerage  of  half  per 
cent,  is  alfo  a  deduction  from  the  amount  of  a  lofs,  and  fubfequent  to  and  for 
the  recovery  of  it ;  and  for  the  fame  reafon,  that  thefe  two  allowances  %\'ere 
never  objefted  to,  on  being  made  a  part  of  the  intereft,  fo  ought  likewife 
the  faid  commiftion  of  2  per  cent,  to  be  confidered  in  the  fame  light : — the 
infurers  cannot  be  injured  thereby,  fince  they  are  paid  a  premium  for  it ;  but 
why  ftiould  the  afliired  be  obliged  to  fuftain  any  lofs,  if  he  chufes,  by  paying 
a  premium,  to  be  fecured  from  it.^ — However,  to  avoid  any  altercation  on 
this  point,  it  is  advifable,  that  the  infured  caufe  it  to  be  inferted  in  the  policy, 
that "  coramiflions,  brokerage,  and  all  other  incident  charges  and  deduftions 
fliall  be  deemed  as  part  of  the  intereft,^'' 

3.  If  any  ftiip  infured  on  going  to,  or  coming  from  the  Indies,  is  not 
iieard  of  in  ayear  and  a  half  after  her  departure  from  the  port  where  ftie 
loaded,  we  declare  that  (lie  is,  and  fhall  be  deemed  loft  -,  and  the  rifque  may 
be  recovered,  on    the  aflureds    making  a  refignation    to  the    infurers,  and 

"•iving   them  the  neceflary  ceftions   and  procurations. — Ordin.  of  Spain. 

If  the  infured  receive  no  news  of  his  fhip,  he  may  at  the  expiration  of  ayear 
for  common  voyages,  reckoning  from  the  day  of  the  departure,  and  after  tioo 
years  for  thole  at  a  great  diftance,  make  his  ceftion  or  abandon  to  the  infurers, 
and  demand  payment,  without  being  obliged  to  produce  any  certificate  of  the 

lofs. — Ordin.    of  France. When  there    is   no  news  of  a  ftiip  within  any 

certain  time,  a  borrower  on  bottomry  hath  no  abandonment  to  make  in  order 
to  be  quit  of  his  engagement ;  nor  can  the  lender  moleft  him,  until  he  can 
prove  the  ftiip  to  be  arrived. — Cleirac,  on  the  2.  art.  c.  18.  of  the  Guidon. 

4.  Remarks. — In  England,  there  is  no  exprefs  regulation,  or  time  limited, 
for  demanding  payment,  in  cafe  of  no  news  arriving  of  a  ftiip  ;  but  it  is 
cuftomary  for  the  infurers  to  deem  her  loft,  if  not  heard  of  in^^x  months  after 
her  departure  (or  after  the  time  of  the  laft  intelligence  from  her)  for  any  part 

of  Europe,  and  in  twelve  months,  if  for  a  greater  diftance. So  likewife  a 

perfon  (whofe  life  may  be  infured)  is  by  law  prefumedto  be  dead,  if  not  heard 
of  in  fix  years. At  London,  it  is  a   cuftom  with  the  infurance  companies 

to 


O        T        T        E        R        Yi 


3i5 


to  pay  in  eight  days  from  the  adjuftment  of  the  lofs :  the  private  infurers  pay 
in  a  month  from  the  time  of  fetding  the  lofs;  and  both,  the  one,  and  the 
others,  in  cafes  of  falvage  and  reclainis,  are  always  very  ready  to  pay  fome- 
thing  on  account,  or  to  advance  money  for  carrying  on  fuits,  cither  upon  the 
reafonablenefs  of  the  thing,  or  a  tender  of  proper  fecurity. 

5.  See  Abandonment,  Abatement,  Accident,  Adjuflmcnt,  Average,  Bottomry, 
Cadiz,  Claim,  Concealment,  Damage,  Dock,  End  of  Voyage  or  Rifque,  Fraud, 
Intelligence,  Interejl,  Leghorn,  Limitation,  Lives,  Lojl  or  not  Loji,  Notice, 
Payment,  Repair,  Salvage,  Time,  Total  Lofs,  Warranty. 


LOST     OR     NOT     LOST. 

1.  'T^HESE  words,  "  loft  or  not  loft,"  are  inferted  in  our  poHcies  of  affiil' 
-*-  ranee  :  and,  though  it  happens  that  at  the  time  the  fubfcription  is 
made,  the  fliip  is  caft  away,  yet  the  infurers  muft  anfwer  :  but  if  the  party, 
who  caufed  the  infurance  to  be  made,  aftually  faw  the  ihip  wrecked,  or  had 
certain  intelligence  of  it,  fuch  fubfcription  will  not  be  obligatory,  for  the  fame 
fliall  be  accounted  a  mere  fratid : — fo  likewife  if  the  afifured,  having  a  rotten 
veffel,  fliall  infure  upon  the  fame  more  than  fhe  is  worth,  and  afterwards 
give  orders  that,  going  out  of  the  port,  tlie  ftiip  fhoufd  be  funk  or  wrecked, 
this  will  be  adjudged  fraudulent,  and  not  oblige  the  infurers  to  anfwer. — 
Molloy,  b.  2.  c.  7.  f.  5. — N.  B,  This  h  felony  by  ftat.-  \  Ann.  4  and  11  Geo.  1. 

2.     See  Barratry,  Concealment,  Fraud,  IntelligeiXce,  Lofs,  Salvage.: 

L       O       T       T       E      R       Y. 

1.   TT  has  been  frequently  praftifed,  when  a  lottery  was   on  foot,  to  infure 
-■-  for  a  certain  premium,  that  a  ticket  fhould  not  be  drawn  a  blank ;  and 
if  it  was,  that  the   infurer  fliould  pay  for  that  ticket  1  funi   agreed  on. — If 
neither  the  infurer  nor  the  infured   were  any  way  concerned  in  the  manage- 
ment of  the  lottery,  fo  as  to  give  room    for  a   Hifpicion   of  collufion   or 
fraudulent  dealings,  we  do  not  perceive  any  great  harm   in   this  ;    provided 
moreover  that  they  afted  openly,  and  the  advantage  and  difadvantage  of  the 
chance  were  vifible :— for  inftance ;    if  five  perfons  fhould  rifque  lool.  each,  to 
be  determined  by  one  ticket,  to  which  of  thera  the  5061.  fhould  belong  ;  there 
could  be  no  harm  for  an  infurer  to  offer  any  one  of  them  to  reftore   to  him 
his  lOol.  if  he  fhould  be  a  lofer,  provided  he  paid  S2I.   for  the  rifque:    and 
fome  would  rather  content  themfelves  with  4181.  than  be  expofcd  to  the  lofs 
of  lOol.   inftead  of  a  chance   for  82I  :  and  it  is    very  plain,  that  if  all  five 
paid  82I.  to  the  infurer,  he  would  have  i<i\.  clear  profit  without  running  any 

rifque. Our  infurance-conlpanics  in  London  would  doubtlefs  have  been 

greatly  benefited,  had  they  been  permitted,  in  the  lottery  of  1753,  to  infure 

4  Q  at 


346  L        O        T        T        E        R        Y. 

at  a  premium  of  2t1-  to  make  good  whatever  prize  a  certain  number  pitched 
on  by  the  infured  fhould  produce  ;  for  if  every  number  had  been  infured  at 
that  rate,  the  infurers  would  have  gained  only  a  fixth  lefs  than  the  govern- 
ment raifed  by  the  lottery ;  and  the  infured  would  have  had  the  fame  chance 
for  2^1.  as  others  that  took  tickets  at  3I.  We  only  remark  this  by  the  bye, 
as  it  is  not  to  be  expefted  that  any  aflociation  or  community  of  men  fliould 
have  the  fame  liberty  as  the  legidature  has,  to  impofe  a  tax  or  penalty  on 
the  folly  o^ gaming,  for  fo  it  may  with  great  juflice  be  called, — 1  Mag.  30,  31. 

2.  In  the  flate-lottery  of  Amfterdam,  1712,  the  whole  number  of  tickets 
was  30,000,  of  which  3,800  were  prizes :  jfohn  Lazv  (afterwards  controller- 
general  of  the  finances  of  France)  in  the  public  papers  propofed,  that  if  any 
one  would  give  him  the  numbers  of  ten  tickets,  and  pay  to  him  100  guilders, 
he  would  infure  them  that  they  fhould  not  all  come  out  blanks  ;  or,  if  they 
did,  to  repay  the  pofleffor  300  guilders  for  the  100  guilders  received : — 
whereupon  the  queflion  is  aflced,  how  much  the  chance  was  in  Law's  favour  ? 
In  order  to  a  general  folution  (by  Mr.  Thomas  Simp/on)  put 

a  =  the  whole  number  of  tickets  in  the  lottery  :  ^  =  the  number  of  blanks  :  n  =  the 
number  of  tickets  infured :  ^  =  the  premium  paid  for  infuring :  5'  =  the  fum  to  be  paid 
if  they  all  come  out  blanks : then,  the  number  of  chances  or  variations  for  drawing  all 

b      a — 1      b — 2 
blanks  being  =  — x X ,&c.  to  n  faftors,  and  the  whole  number  of  chances  or 

1        2  3 

a      a—\     a— 2  i_  fH^.   h—i,  &c. 

variations  is  =  — x X ,  &c.  to  n  faftors,  it  follows,  that  q  x 


123  a.a — 1.  a — 2,  &c. 

will  exprefs  the  fum  paid,  ax  a  medium,    in    confideration  of  the  premium  received; 

b.  b — 1.  b — 2. 
fo  that  the  gain  by  every  infurance,  taken  one  with  another,  is  ■=p — q  x  —  — 

h^,  &c.  to  n  faQors  a.a—x.  a— 2. 

■        '.  which,  as  both  a  and  h  are  fuppofed  to  reprefent  large  numbers, 

a — 3,  &c.  to  n  faQors 

h" 

will  be  ^  j& — gx —  very  near. Thus,    in   the  cafe   propofed,     a   being  =30,000, 

a"  b" 

3  =  26,200,  thence  is  the  logarithm  of  ^x —  (=log.  q — n  x  log.  a — log.  v.)  =  2,477121 

a" 

—10x0,058820=1,888921,  to  which  the  number  correfponding  is  77,42;  which 
fubflrafted  from  100,  leaves  22,58=  the  number  of  guilders  gained  by  Law,  upon  a 
medium,  by  every  infurance. 

If  it  were  to  be  demanded,  how  much  ought,  on  an  equality  of  chance,  to 
have  been  paid  by  him,  in  confideration  of  100  guilders  premium,  when  all 
the  tickets  infured  fhould  be  drawn  blanks ; 

b'  a" 

TA^n,  putdngyx  —  =j>,  we  havey=^  x — exprefling  the  number  required;  which, 

a"  br 

in  the  cafe  propofed,  comes  001  =  3875;  and  fo  many  are  the  guilders  that  Law  might  have 

afforded  to  pay,  when  all  the  ten  tickets  proved  to  be  blanks,   without  being  a   lofer 

by  the  bargain. 

3.     Im 


o 


£ 


R 


Y. 


H7 


3.     In  the  fame  manner  the  advantage  or  difadvantage  in  any  other  lottery 
may  be  determined,  from  the  general  equation  above  given: 

a  d-\- 1 

But,  the  equation  will  be    rendered   rather   more    commodious,    if — be  put  = 

b  d 

(that  is,  if  the  proportion  of  the   blanks  to  the  prizes  be  fuppofed  as  ^  to  1.)  whereby 


p — q  X  — ^  becomes  ==.p-^q  x 

a"  ^+1 


o-  d-\- 1 

and/X — =/X 

b-  d 


From  the  latter,  the  following  table  is  calculated,  exhibiting  at  one  view, 
what  fum  ought,  upon  an  equality  of  chance,  to  be  repaid  for  lool.  premium, 
if  any  given  number  of  tickets  (not  exceeding  ten)  Ihould  be  all  drawn  blanks. 


Number   of  tickets  infurcd. 


3 

4 

>.. 

5 

6 

0 

7 

1 

^^ 

8 

^ 

3 

9 

►c 
u- 

10 

C 

^ 

1 1 

0 
^ 

12 

3 

13 

:2 

14 

15 

1 

^33'3 

^25 
120 
16,6 

14,3 
12,5 
11,1 

lO 

109.1 
108,3 

107,7 
107,1 
106,6 
io6,2 


i2 
177,8 

156,3 

144 

136.1 

130,6 

126,5 

123.5 
121 

119 

117.4 

116 

114.7 

113.9 
112, 9 


3 
236,9 

195.8 
172,8 
158,8 

149,3 

142,4 

137.3 

1331 
129,8 

127,1 
124,8 
122,9 

121,4 

120 


4 
315.8 

244.1 
207,4 

185.3 
170,6 

160,3 

152,4 
146,4 

141,6 

137.7 
1345 
131.6 
129.5 
127.4 


5 
421 

305.2 
248.9 
216,1 

95 
80,3 

69.4 
6i 

54.5 

49.3 

44.9 

41 

38 

35.4 


6 

561,3 
382,4 
298,6 

252,1 
222,9 
202,8 
188^2 

177,1 
168,5 
i6i,6 
156 

151.1 
147.2 
143.9 


7 
748 

476,9 

8 

997.2 
596,1 

35«,4 

430 

294-3 

343.2 

254-4 
228,3 

291,1 
256,6 

209,1 

232.4 

194.9 
183.9 

175.1 
168 

214,4 
200.4 
189,8 
180,9 

161,9 
157.1 

173.4 
167,6 

152,9 

162,4  , 

9 

132,9 

:^45.3 
516 

400,5 
332.6 
288.8 
258,1 
235.8 
218,9 

205,5 

194,9 
185,6 

178,7 

172,6 


10 

177.2 

931,4 
619.3 

467,1 
380,3 
324.8 
2867 

259.4 

239 
222,6 

209,9 
198,9 
190,6 
183,4 


For  an  in/lance  of  the  vfe  of  the  above  table, 

Suppofe  that  a  perfon  in  the  London  lottery  of  1753,  wherein  there  were  eleven 
blanks  to  a  prize,  fhould  offer  to  pay  200I.  for  lool.  received,  if  in  the  number  of  ten 
tickets  no  one  fliould  be  drawn  a  prize  : — then,  to  know  his  advantage  or  difadvantage,  we 
are  to  look  for  the  number  of  tickets  at  the  head  of  the  table,  and  for  the  proportion  of 
blanks  to  a  prize  in  the  firft  column  to  the  left  hand ;  anfwering  to  which  the  number  239 
will  be  found,  being  the  fum  that  the  infurer  might  afford  to  pay,  when  all  the  tickets  come 
out  blanks,  without  being  a  lofer  : — fo  that  by  every  239I.  (at  a  medium)  he  gains  39!. 
clear: — hence  it  will  be,  as  239I.  is  to  39I.  fo  is  lool.  to  16I.  6s.=the^am  per  cent,  upon 
all  the  money  he  receives. 

For  a  Jecond  example. 

Let  there  be  now  fuppofed  a  lottery,  wherein  there  are  only  four  blanks  to  a  prize, 
and  fuppofe  the  premium  to  be  60I.  for  infuring  the  number  of  fix  tickets,  and  that  the 
fum  to  be  paid  back  if  they  are  all  drawn  blanks,  is  200I.  Here  the  fum  to  be  paid  on  an 
equality  of  chance,  in  confideration  of  a  premium  of  lool.  appears  to  be  382I.  4s.  But 
60  :  200  :  :  loo  :  333. 3,  the  fum  aftually  repaid  for  lool.  in  cafe  no  prize  is  drawn,  this, 
fubftrafted  from  382,4  leaves  49,1  =the  gain  on  382,4  ;  and  fo  we  have  382,4  :  49,1  :  : 
100  :  12,8,  or  12I.  16s.  the  gain  per  cent,  of  the  infurer,  in  the  cafe  lall  propofed. 

4.     See  Event,  Gaming-Infurance,  hifurance,  Interejl,  Inter eji  or  no  Inter eji. 
Lives,   Wager. 


MARINER, 


M. 


MARINER. 

1.  T  F  goods  delivered  on  fhipboard  are  embezzled,   all  the  mariners  ought 
-■-  to  contribute  to  the  fatisfa61ion  of  the  party  who  is  the  fufferer,  by  the 
maritime  law,  and  the  caufe  is  to  be  tried  in  the  admiralty. — i  LiLl.  368. 

2.     See    Barratry,    Damage,   Embezzlement,  Fraud,  Leakage,  Maritime 
Law,   Majler,   Negligence,  Seamen,   Theft,   Wages. 

MARITIME       COURT. 

J.  *"  I  ^  HE  maritime  courts,  or  fuch  as  have  power  and  jurifdi6iion  to 
■*-  determine  all  maritime  injuries,  arifing  upon  the  feas,  or  in  parts 
out  of  the  reach  of  the  common  law,  are  only  the  court  of  admiralty,  and 
it's  courts  of  appeal.  The  court  of  admiralty  is  held  before  the  lord  high 
admiral  of  England,  or  his  deputy,  who  is  called  the  judge  of  the  court. 
According  to  Sir  Henry  Spelvian  (Glofs.  \'^^  ^wdi  Lambard  (Archeion.  41.) 
it  was  firft  of  all  erefted  by  King  Edward  the  third.  It's  proceedings  are 
according  to  the  method  of  the  civil  law,  like  thofe  of  the  ecclefiaflical 
courts  ;  upon  which  account  it  is  ufually  held  at  the  fame  place  with  the 
fuperior  ecclefiaftical  courts,  at  doftors'  commons  in  London.  It  is  no 
court  of  record,  any  more  than  the  fpiritual  courts.  From  the  fentences  of 
the  admiralty  judge  an  appeal  always  lies,  in  ordinary  courfe,  to  the  king  in 
chancery,  as  may  be  collefted  from  the  ftatutc  25  Hen.  8.  c.  ig.  which  direds 
the  appeal  from  the  archbifliop's  courts  to  be  determined  by  perfons  named 
in  the  king's  commilhon,  "  like  as  in  cafe  of  appeal  from  the  admiral-court." 
But,  this  is  alfo  exprefsly  declared  by  flatute  8  Eliz.  c.  5.  which  enads> 
that  upon  appeal  made  to  the  chancery,  the  fentence  definitive  of  the- 
delegates  appointed  by  commilTion  fliallbe  final. — ^  Black,  Comm.  68. 

2.     See    Admiralty  &   Admiralty-Court,    Appeal,   Chamber  of  AJfurance, 
Civil  Lazo,  Conful,  Lato  of  Nations,  Maritime  Law. 

MARITIME 


MARKET.  349 

MARITIME         LAW. 

1.  'T^HE   maritime  law  is   not   the  law  of"  a  particular  country,  but  the 
J-     general  law  of  nations  : — "  non  erit  alia  lex   Roma;,  alia;  Athenis, 
alise  nunc,   alia  pofthac  ;   fed  et  apud    omnes  gentes  et  omni  tempori,   una 
eademque  lex  obtinebit." 

2.  See  Prelim.  Difc.  Gj.  Admiralty  &  Admiralty-Court,  Capture,  Chamber 
of  AJfurance,  Civil  Law,  Freight,  Law,  Lazo- Merchant,  Law  of  Nations, 
Oleron,   Ordinance,  Prize,  Rhodian  Lazus,   Sea-Laxvs,   Wi/buy-Laxvs. 

MARKET. 

1.  T  HAVE  already  explained,  under  title.  Average,  what  regard  Ihould 
-*-  be  had  to  the  value  of  goods  on  their  arrival  at  the  place  of  deflination, 
compared  with  the  amount  of  their  prime  cofl  and  charges  covered  by 
infurance,  or  their  valuation  in  the  policy,  in  order  to  eftimate  truly  the 
average  or  proportion  which  ought  to  be   made  good  by  the  infurer  to  the 

infured,  when  the  goods  have  received  damage  at  fea. What  follows  will 

further  illuftrate  this  matter. 

2.  Case. — A  rule  having  been  obtained  by  the  plaintiffs  (the  infured) 
for  the  defendant  (the  infurer)  to  fliew  caufe  why  a  verdift  given  for  the 
defendant  fliould  not  be  fet  afide  and  a  new  trial  had  ;  the  court,  after  hearing 
the  matter  fully  debated  by  the  counfel  on  both  fides,  took  time  to  advife  : — • 
and  Lord  Mansfield  now  delivered  their  refolution  : — he  faid,  this  was  an 
aftion  brought  upon  a  policy  by  the  plaintiffs,  for  Mr.  James  Bourdieu, 
upon  the  goods  aboard  a  fliip  called  the  Vrow  Martha,  at  and  from  St. 
Thomas's  Ifland  to  Hamburgh,  from  the  loading  at  St.  Thomas's  Ifland  till 
the  fhip  fliould  arrive  and  land  the  goods  at  Hamburgh  :  the  goods  (which 
confifted  of  fugars,  coffee,  and  indigo)  were  valued  at  30I.  per  hogfliead  the 
clayed  fugars,  and  20I.  per  hogfhead  the  Mufcavado  fugars,  and  the  coffee 
and  indigo  were  likewife  refpeftively  valued  ;  the  fugars  were  warranted 
free  from  average  under  5I.  per  cent,  and  all  other  goods  free  from  average 
under  3I.  per  cent,  unlefs  general,  or  the  fhip  be  flranded  : — in  the  courfe 
of  the  voyage  the  fea-water  got  in,  and  when  the  fliip  arrived  at  Hamburgh, 
it  appeared  that  every  hogfhead  of  fugar  was  damaged  ;  the  damage  the 
fugars  had  fuflained  made  it  neceffary  to  fell  them  immediately,  and  they 
were  accordingly  fold  ;  and  the  difference  between  the  price,  whicli  they 
brought  by  reafon  of  the  damage,  and  that  which  they  might  have  been  fold 
for  at  Hamburgh,  if  they  had  been  found,  was  as  20I.  os.  8d.  per  hogfhead 
is  to  23I.  7s.  per  hogfhead  (i.  e.  if  found,  they  would  have  been  worth 
23I.  7s.  per  hogfhead  ;  as  damaged,  they  were  only  worth  20I.  os.  8d.  per 
hogfhead). — The  defendant  paid  money  into  court,  by  the  following  rule  of 

4  R  ctliniating 


350  MARKET. 

eRimating  the  damage  :  he  paid  the  like  proportion  of  the  fum  at  which  the 
fugars  were  valued  in  the  policy,  as  tlic  price.of  the  damaged  fugars  bore  to 
found  fugars   at  Hamburgh  (the  port  of  delivery) :    all  this  was  admitted  at 
the   trial,   though   perhaps  upon  an   accurate  computalion,   there  may  be  a 
miilake    of  about    17s.   upon   the   money   paid    in:   but  no  advantage  was 
attempted  to  be  taken  of  this  flip  at  the  trial  ;    it  was  admitted  that  the  money 
paid  in  was   fufficient,   if  the  rule  by  which  the  defendant  eftimated  the  lofs 
was  right,  and  the  only  queflion  at   the  trial  was,    "  by  what  meafure  or  rule 
the  damage  (upon  all  the   circumftances  of  this  cafe)  ought  to  be  eftimated?" 
: — To  diftinguifli    this  cafe,  under  it's    particular  circumftances,  out  of  any 
general  rule,  the  plaintiff 's  counfel  called  Mr.  Samuel  Chollett,  clerk  to  Mr. 
Bourdieu,   who  proved  that  upon  the    15th   of  February  (the  time  of  the 
infurance)  fugars  were  worth  at    London  and  Hamburgh  35I.   a  hogfhead ; 
that  the  propofal  of  a  congrefs  to  be  holden,  and  the  cxpefiation  of  a  peace, 
had  on  a  fudden  funk  the  price  of  fugars ;    that  before  the  fliip  arrived  at 
Hamburgh,   and  before   he  could  know  that  the   fugkrs    had   received  any 
damage,    Mr.  Bourdieu  had  fent   orders,  "  that  the  fugars  fhould  be  houfed 
at  Hamburgh,"   and  "  kept  till  the  price  fhould  rife  above  30I.  per  hogfliead;" 
that  he  had  many  hundred  hogfheads  of  fugar  lying  at  Amfterdam,  to  which 
place  he  fent  the  like  orders ;   that,  in  faft,  the  congrefs  not  taking  place, 
fugars  rofe  25I.  per  cent,  that  what  he  fold  of  the  fugars  he  had  at  Amfterdam 
brought  30I.  per  hogfhead  and  upwards ;     that   he    might  have  fold  thefc 
fugars  at  the  fame  price,  if  they  had  been  kept  according  to  his  orders  ;    and 
the  only  reafon  why   they  were  not  kept  was,  becaufe  they  were  rendered 
perifhable    from  the    fea-water  which  had  got  in:    therefore,  faid  they,   the 
necelTity  of  an  immediate  fale   and   the   confequence   thereof,    ought  to  be 
computed  into  the  damage. — The  fpecial  jury   (amongft  whom    there  were 
many  knowing  and    confiderable  merchants)   found   the    defendant's  rule  of 
eftimation  to  be  right,  and  gave  their  verdift  for  him  :  they  underftood  the 
ijueftion  very  well,   and  knew  more  of  the  fubje6l  of  it  than  any  body  elfe 
prcfent,  and  formed  their  judgment  from  their  own  notions  and  experience, 
without   much   affillance  from  any  thing  that  palfed  : — the  counfel  for   the 
plaintiff,  in  the   outfet,  chiefly  refted   upon   the  particular  circumftances  of 
this  cafe : — the  counfel  for  the  defendant  offered  to  call  witncffes  to  prove 
•the  general  ufage    of  eftimating   the   quantity  of  damage  where  goods  are 
injured  : — I  was    at   firft  ftruck  with  the   argument,  "  that   the  mmiediate 
neceflity  of  felling  in   this  cafe    might  be    taken  into   confideration,  as  an 
exception  to  the  general  rule,    and  propofed  that  the  caufe  might  be  left  to 
the  jury    upon   that   point:     then  Mr.    Winn,    for  the  defendant,   argued, 
"  that  the  necefhty  of  felling,  and   the    confequence   thereof,  ought  not  to 
be   regarded ; '    and  what  he   faid  had  fo  much  weight,  that    it  very  much 
changed  my  way  of  thinking :    there  was  nothing  to  fum  up ;    but  the  jury 
allccd  whether  I  would  give  them  any  direftions :    I  faid,   1  left  it  to  them, 
"  M'hether  the  difference   between  the  found  and  the  damaged  fugars   at  the 
port  of  delivery,    ought  to  be  the  rule  ?"    or,  "  whether  the  necejiis  of  an 
immediate  fale   (certainly  occafioned  by   the  damage)  and  the  lofs  thereby 

fhould 


MARKET. 

)0 


>'i 


fhoLild  be  taken  into   confideration  ?"   I  told  them,  though  it  had  llruck  me 
at  firft,  that  this  cafe  might  be  an  exception  ;    yet,  what  the  counfcl  for  the 
defendant   had   faid  to   the    contrary   feemed   to  have    great  weight. — The 
counfel    for   the    plaintiff,   not   having   replied   nor   gone    into  the    general 
argument,    upon  an  apprehenfion  that  my  opinion  was   with    them    upon   the 
particular   circumftances   of  this  cafe,  were  diffatisfied  with  the  verditl,  and 
faid  they  would  try  the  other  caufe  in  the  paper  upon  the  fame  policy  ;    but, 
inftead   of  that,  they  have  moved  for  a  new  trial  in  this  caufe   (which  I  am 
extremely  glad  of)  : — no   facl  is  difputed  ;   the  only    queflion  is,  "  whether 
(all  the  fafts  being  agreed)   the  jury  have  eflimated  the  damage  by  a  proper 
meafure  ?" — To  make  the  matter  more  intelligible,  I  will    firlt  ftate  the  rule 
by   which  the   defendant   and  jury  have  gone  ;    and  then  I   will    examine 
whether  the  plaintiff  has  fliewn  a  better: — the  defendant  takes  the  proportion 
of  the  difference  between  found  and  damaged  at  the  port  of  delivery,  and 
pays  the  proportion  upon  the  value  of  the  goods  fpecified  in  the  policy,  and 
has  no  regard  to   the   price  in  money  which  either  the  found  or  damaged 
goods  bore  in  the  port  of  delivery  ;   he  fays  "  the  proportion  of  the  difference 
is  equally  the  rule,    whether  the  goods  come  to  a  rijing  or  2.  falling  market :" 
for  injlancc ;    fuppofe   the  value    in  the  policy  30I.  they   arc   damaged,  but 
fell   for  40I.    if  they  had   been   found,  they    would  have  fold  for   50I.    the 
difference  is  a  fifth  :   the  infurer  then  muff  pay  a  fifth  of  the  prime  coft,  or 
value  in  the  policy  (that  is  61.) — c  conver/o  ;   if  they  come  to  a  lofing  market 
and  fell  for  lol.   being  damaged,  but  would  have  fold  for  20I.  if  found,    the 
difference  is  one  half;  the  infurer   mull  pay  half  the  prime  coff  or  value  in 
the    policy  (that  is    15I.): — to   this   rule  two   objeftions  have  been    made: 
Jirjl  objection,  that  it  is  going  by  a  different  meafure  in  the  cafe  of  a  partial, 
from  that  which  governs  in  the  cafe  of  a  total  lofs  ;   for,  upon    a  total   lofs, 
the  prime    coft  or  value  in  the  policy  muft  be  paid  :    an/wer,  the  diftinftion 
is  founded  in  the  nature  of  the  thing :  infurance   is  a  contratl  of  indemnity 
againft  the  perils  of  the  voyage :  the  infurer  engages  fo  far  as  the    amount 
of  the   prime   coft,    or   value  in  the    policy,  "  that  the    thing   ftiall    come 
fafe  -,"    he   has  nothing   to  do   with   the  market ;  he  has  no  concern    in  any 
profit  or  lofs  which   may  arife  to  the    merchant   from  the  goods ;  if  they 
be  totally  loft,  he  muft  pay  the  prime  coft,   that  is,  the  value  of  the  thing  he 
infured,    at   the  outfet ;     he    has   no  concern   in   any    fubfequent  value  : — ■ 
fo  likewife  if  part  of  the  cargo,   capable  of  a  feveral  and  diftincl  valuation  at 
the  outfet,  be  totally  loft ;   as  if  there  had  been  100  hogfheads  of  fugar,  and  ten 
happen  to  be  loft,  the  infurer  muft  pay  the  prime  coft  of  thofe  ten  hogftieads, 
without  any  regard  to  the  price  for  which  the  other  ninety  may  be  fold :    but 
where   an  entire  individual,   as  one  hogftiead,   happens  to   be  fpoiled,    no 
meafure  can  be  taken  from  the  prime  coft  to  afcertain  the  quantity  of  fuch 
damage  :   bwt  if  you  can  fix  whether  it  be  a  third,  fourth  or  Jifth  worfe,  the 
damage  is  fixed  to  a  mathematical  certainty  :    how  is  this  to  be  found  out? 
not  by  any  price  at  the  outfet  port,   but  it  muft  be  at  the  port  of  delivery, 
where  the  voyage  is   completed,    and  the  whole  damage   known :    whether 
the  price  there  be  high  or  low,   in  either  cafe  it  equally  fhews  whether  the 

damaged 


352  MARKET. 

damaged  goods  are  a  third,  or  fourth,  or  fifth  worfe  tlian  if  they  came  found  ; 
confequently,  whether  the  injury  fuflained  be  a  third,  fourth,  or  fifth  of  the 
value  of  the  thing;  and  "as  the  infurer  pays  the  whole  prime  coft  if  the 
tiling  be  wholly  loft ;  fo,  if  it  be  only  a  third,  fourth,  or  fifth  worfe,  he  pays 
a  third,  fourth,  or  fifth  of  the  value  of  the  goods  fo  damaged." — The  fecond 
objedion,  with  which  this  cafe  has  been  much  entangled,  is  taken  from  this 
being  a  valued  policy:  I  am  a  little  at  a  lofs  to  apply  the  arguments  drawn 
from  thence :  it  is  faid,  that  a  valued  is  a  wager  policy,  like  intereft  or  no 
intereft ;  if  fo,  there  can  be  no  average  lofs,  and  the  infured  can  only  recover 
as  for  a  total,  abandoning  what  is  faved,  becaufe  the  value  fpecified  is 
fiftitious :  anfwer,  a  valued  policy  is  not  to  be  confidered  as  a  wager  policy, 
or  like  "  intereft  or  no  intereft  :"  if  it  was,  it  would  be  void  by  the  aft  of  19 
Geo.  2.  c.  37 :  the  only  effe6l  of  the  valuation  is,  fixing  the  amount  of  the 
prime  coft ;  juft  as  if  the  parties  admitted  it  at  the  trial :  but  in  every 
argument,  and  for  every  other  purpofe,  it  muft  be  taken  that  the  value  was 
fixed  in  fuch  a  manner,  as  that  the  infured  meant  only  to  have  an  indemnitv: 
if  it  be  under-valued,  the  merchant  himfelf  ftands  infurer  of  the  furplus;  if 
it  be  much  over-valued,  it  muft  be  done  with  a  bad  view,  either  to  gain, 
contrary  to  the  19th  of  the  late  king,  or  with  fome  view  to  a  fraudulent  lofs: 
therefore  the  infured  never  can  be  allowed  in  a  court  of  juftice,  to  plead  that 
he  has  greatly  over-valued,  or  that  his  intereft  was  a  trifle  only: — it  js  fettled, 
'•'  that  upon  valued  policies,  the  merchant  need  only  prove  fome  intereft,  to 
take  it  out  of  19  Geo.  2.  becaufe  the  adverfe  party  has  admitted  the  value ;  and 
if  more  was  required,  the  agreed  valuation  would  fignify  nothing :"  but  if  it 
fiiould  come  out  in  proof,  that  a  man  had  infured  2,,oool.  and  had  intereft  on 
board  to  the  value  of  a  cable  only;  there  never  has  been,  and  I  believe  there 
never  will  be  a  determination,  that  by  fuch  an  evafion  the  aft  of  parliament 
may  be  defeated : — there  are  many  conveniencies  from  allowing  valued 
policies  ;  but  where  they  are  ufed  merely  as  a  cover  to  a  zoager,  they  would 
be  confidered  as  an  evafion :  the  effeft  of  the  valuation  is  only  fixing  con- 
clufivcly  the  prime  coft  ;  if  it  be  an  open  policy,  the  prime  coft  muft  be 
proved ;  in  a  valued  policy,  it  is  agreed : — to  argue  '•'  that  there  can  be  no 
adjuftment  of  an  average  lofs  upon  a  valued  policy,"  is  direftly  contrary  to 
the  very  terms  of  the  policy  itfelf ;  it  is  exprefsly  fubjeft  to  average,  if  the  lofs 
upon  fugars  exceed  5I.  per  cent. ;  if  it  was  not,  the  confequence  could  not  be, 
that  every  partial  lofs  muft  thereby  become  total ;  but  the  event,  to  entitle 
the  infured  to  recover,  would  not  happen,  unlefs  there  was  a  total  lofs  ;  con- 
fequently, the  plaintiffs  in  this  cafe  would  not  be  entitled  to  recover  at  all; 
for  tliere  is  no  colour  to  fay  this  was  a  total  lofs,  befides  "  the  plaintifis 
have  taken  to  the  goods,  and  fold  them." — In  oppofition  to  the  meafure  the 
jury  have  gone  by,  the  plaintiff's  contend,  that  they  ought  to  be  paid  the 
whole  value  in  the  policy  upon  one  of  two  grounds  :—-y?7y?,  becaufe  the 
general  rule  of  eftimating  fhould  be  the  difference  between  the  price  the 
damaged  goods  fell  for,  and  the  prime  coft,  or  value  in  the  policy:  here,  the 
damaged  fold  at  20I.  os.  8d.  per  hogftiead,  and  the  underwriter  (liould  make 
it  up  30I. :  anfwer,  it  is  impoffible  this  fhould  be  a  rule :  it  would  involve  the 

underwriter 


I 


MARKET,  353 

linderwriter  in  the  rife  or  fall  of  the  market ;  it  would  fubjeft  him,  in  fome 
cafes,  to  pay  vaftly  more  than  the  lofs  ;  in  others,  it  would  deprive  the  infured 
of  any  fatisfaclion,  though  there  was  a  lofs :  for  injiance,  fuppofe  the  prime 
cofl:  or  value  in  the  policy  30I.  per  hogfhead ;  the  fugars  are  injured;  the 
price  of  the  befl;  is  20I.  a  hogfhead;  the  price  of  the  damaged  is  19I.  los.  the 
lofs  is  about  a  fortieth,  and  the  infurer  would  be  to  pay  above  a  third  : 
fuppofe  they  come  to  a  rifing  market,  and  the  found  fugars  fell  for  40I.  a 
hogfliead,    and  the  damaged  for  35I.    the  lofs   is   an  eighth,  yet  the  infurer 

would  be  to  pay  nothing. The  fecond  ground  upon   which  the  plaintiffs 

contend  that   the  30I.    fliould  be  made   up,    is,   that  it   appears  the  fugars 
Would  have  fold  for  that  price,   if  the  damage  from  the  fea-water  had  not 
made  an  immediate  fale  neceffary  :    the  moment  the  jury  brought  in  their 
verdict,  I  was  fatisfied  that  they  did  right,  in  totally  difregarding  the  particular 
circumftances  of  this  cafe :    and  I  wrote  a  memorandum,  at  Guildhall,  in  my 
note  book  "  that  the  verdift  feemed  to  be  right ;" — as  I  expefted  the  other 
caufe  would  be  tried,  I  thought  a  good  deal  of  the  point,    and  endeavoured 
to  get  what  aflTiftance  I  could  by  converfing  M'ith  fome  gentlemen  of  experience 
in  adjuftments:    the  point  has  now  been  fully  argued  at  the   bar;    and  the 
more  I  have  thought,  the  more  I  have  heard,  upon  the  fubject,  the  more  I  am 
convinced  that  the  jury  did   right  to  pay  no  regard  to  thefe  circumftances  i 
*'  the  nature  of  the  contract  is,  that  the  goods  (hall  come  fafe  to  the  port  of 
delivery  ;    or  if  they  do  not,    to  indemnify  the  plaintiff  to  the  amount  of  the 
prime  cofl,   or  value   in  the   policy :"   if  they  arrive,   but  leffened  in  value 
through  damages  received'at  fea,  the  nature  of  an  indemnity  fpeaks  demon- 
ftrably,  that  it  muft  be  by  putting  the  merchant  in  the  fame  condition  (relation 
being  had  to  the  prime  coil  or  value  in  the  policy)  which  he  would  have  been 
in  if  the  goods  arrived  free  from  damage;  that  is,  "  by  paying  fuch  proportion, 
or  aliquot  part  of  the  prime  cofl,    or  value  in  the  policy,   as  correfponds  with 
the  proportion  or  aliquot  part  of  the  diminution  in  value  occafioned  by  the 
damage :"   the  duty  accrues  upon  the  fliips  arrival  and  landing  her  cargo  at 
the  port  of  delivery  ;    the  infured  has  then  a  right  to  demand  fatisfaftion  :    the 
adjuflment  never  can  depend  upon  future  events  or  fpeculations :    how  long 
are  they  to  wait  ?    a  week,  a  month,   or  a  year  ?    in  this  cafe  the  price  rofe  : 
but  if  the  congrefs  had  taken  place,   or  a  peace  had  been  made,  the  price 
would  have   fallen:    the  defendant  did  not  infure,    "  that  there  fhould  be  no 
congrefs  or  peace :"   it  is  true,  Mr.  Bourdieu  acled  upon  political  fpeculation, 
and  ordered  the  fugars  to  be  kept  till  the  price  fhould  be   30I.  or  upwards : 
but  no  private  fcheme  or  projeft  of  trade  of  the  infured,  can  affetl  the  infurer ; 
he  knew  nothing  of  it :    the  defendant  did  not  undert  ike  that  the  fugars 
fliould  bear  a  price  of  30I.  a  hogOiead :    if  fpeculative  deflinations  of  the 
merchant,  and  the   fuccefs  of  fuch  fpeculations  are  to  be  regarded,    it  would 
introduce  the  greatefl   injuflice  and  inconvenience :    the  underwriter  knows 
nothing  of  them  :    the  orders  here  were  given  after  the  figning  of  the  policy  ; 
but  the  decifive  anfwer  is,  that  "  the  underwriter  has    nothing  to  do  with 
the  price  ;    and  the  right  of  the  infured,  to  a  fatisfaftion,  where   goods  are 
damaged,    arifes   immediately   upon    their    being    landed    at    the    port    of 

4  S  (Icliv.-ry;" 


354  M     A     R     K     E     T. 

deliver}'." — We  are  of  opinion  that  the  plaintiflFs  are  not  entitled  to  have  the 
price  for  which  the  damaged  fugars  were  fold,  made  up  30I,  per  hogfliead  : 
and  it  feems  to  us  as  plain  as  any  propofition  in  Euclid,  that  the  rule  by  which 
the  jury  have  gone  is  the  right  nicalure. — The  rule  muft  be  difcharged. — 
2-6u)T.  1167.  May  2d,  1761. — Leiois  \.  Rucker. 

3.  To  illuftrate  the  wide  difference  there  is  between  calculating  a  general 
average  by  the  infurers,  at  the  price  goods  would  fetch  at  the  place  they 
were  bound  to,  or  when  the  fame  is  made  according  to  the  firji  cojl,  on 
board,   let  us  for  example  fuppofe. 

That  A.  has  fhippcd  oil  in  flaflvs,  which  with  all  charges  till  on  board,  and  the  premium 
of  infurancc,  amounted  to  lool.  fler.  and  according  to  the  price  at  the  place  where  they 
were  to  go,  would  render  no  more  than    -------  £Zo 

B.  has  wine  and  brandy,   which  cofl;  in  like  manner  lool.  and  would  produce  120 

C.  has  almonds,    which  cofl  lool.  and  would  yield  -----  160 

D.  is  owner  of  the  fhip  and  freight,    and  anfwerable  for  lool.  value  of  the   fliip,    and 

her  fitting  out,  in  all  -         ^         ------         -  1 20 


/■480 

If  of  thefe  there  were  obliged  to  be  thrown  over-board  in  the  voyage  the  flafks  of  oil 

belonging  to  A.       -----------  £Zo 

The  wine  and  brandy  ofB.  -         -         -         -         -         -         -         -  12  :> 


£'2or> 
Then  would  there  be    200I.  to  be  paid   for  the  general  average  upon  480I.  which  is 
41  7I.  upon  tool,  and  is  equal 

To  A.  for  his  value  of     £^0         -         -         .         _  £,^r^  i 

B.  ditto     --120----  50 

C.  ditto     -         -         160         -         -         -         -  66  T 

D.  ditto     ,         -         120         -         -         -         -  50 


£200 
If  this  fum  was  calculated  upon  the  refpeClive  capital  of  the  coll,  and  of  the  fliip,  with 
ihe  expcnces  of  her  fitting-out,  amounting  together  to  400I.  only,  then  every  one  would 
have  50  per  cent,  to  pay  towards  this  general  average : — now  luppofing  that  each  of 
thefe  A.  B.  C.  D.  had  made  alTurancc  to  the  full  upon  the  coft  for  lool.  there  is  no 
doubt  when  the  infurer  of  C.  fees  that  he  has  contributed  towards  the  average  for  160I. 
whereas  he  has  underwrote  and  received  premium  for  no  more  than  lool.  he  will  not  think 
himfelf  liable  to  bear  more  than  the  proportion  of  lool.  as  having  nothing  to  do  with  the 
further  charge  that  falls  upon  the  goods  either  by  a  particular  conjun8ure,  or  by  the 
profit  the  proprietor  maizes  upon  them;    but  that  he  ought  to  pay  41  7I.  Ilcrl.  only  for  the 

fum  underwrote  by  him   as  above    mentioned. The  fame   argument   may  with  equal 

juftice  be  made  ufe  of  by  A.  towards  his  infurer,  that  although  he  did  contribute  no 
more  towards  the  average  than  at  the  rate  of  41  -11.  per  cent,  upon  Sol.  being  33  \\.  yet  as 
the  infurer  had  underwrote  and  received  the  premium  for  looI.  he  ought  Jikewife  to  pay 
iiim  without  dcduftion  the  whole  41 11.  which  according  to  the  repartition,  fell  upon  the 
lool.  he  had  underwrote  for,  as  having  nothing  to  do  with  (he  lofs  on  the  goods. — But 
it  is  become  a  cultom,  that  though  fliips  or  goods  are  infurcd  for  larger  fuins  than  thcv 
are  afterwards  rated  at  in  the  general  average,  yet  the  infurers  never  allow  to  the  infured 
any  more  than  they  are  charged  with  in  the  repartition :    by    which   means  indeed  the 

infureri 


MASQUED    SHIP    OR    PROPERTY.  355 

Infurers  in  fuch  cafes  take  the  advantage  of  the  lofs  of  the  infured :  but  it  o\!ght  to  be 
confidered,  if  the  fliip  had  been  loft  on  her  voyage,  that  then  the  qucflion  would  not 
have  been,  whether  the  goods  would  have  produced  lefs  or  more  at  the  place  they  were 
bound  to;  but  upon  the  infured's  bringing  fufficient  proofs,  that  the  goods,  with  the 
premium  included,  coft  him  lool.  the  infurer  would  have  been  obliged  to  pay  the  full 
lool.  he  underwrote,  and  no  lefs  :  as  on  the  other  hand,  the  infurer  of  C.  would  not  be 
anfwerable  for  more  than  the  tool,  underwrote  by  him  on  the  goods,  which  yielded  a 
profit  at  the  market-price. 

4.     See  Prelim.  Difc.  44.  Average,  Contribution,  General  Average,  Intereji-, 
Jetfon,   Valuation. 


MASOUED    SHIP    OR    PROPERTY. 

1.   /^ASE. — The  Snow  Trial,  William  Jefferys,  mafter,  was  taken  up  by 
^-^  the  government  of  Carolina  aS  ajlag  0/ truce,  to  go  to  the  Havanna, 
with  pretence  to  bring  from  thence  fome  Palatines,  lately  taken  and  carried 
in  there,  on  board  an  Englifh  (hip,  the  Lydia,  Capt.  Abercromby  ;    and  by 
this  occafion  feveral  Carolina  merchants  loaded  goods  aboard  her  to   a  very 
confiderable  value,  and  directed  their  friend,  Mr.  James  Crockatt,  of  London, 
to  get  io,oool.  infured  on  them,  and  at  the  fame  time  to  inform  the  under- 
writers of  every  circumllance  of  the  voyage ;  viz. — that  the  cargo  confilled 
of  eighty  or  ninety  negroes,  and  the  rell  manufaftures  of  Great-Britain  and 
Germany  ;  all  which  was  to  be  regularly  cleared   out   for  Providence,  where 
the  veffel  was   to   have   liberty  to   call,    in  her  voyage  down,   for  a  pilot : 
the  allured  alfo  mentioned  the   probability  that   one  mailer  of  the  Spanifli 
language  might  go  in  the  chara6ler  of  captain  of  the  flag,  by  the  aforefaid 
government,  and  Jefferys  only  appear  as  pilot,  though  the  latter  was  to  fign 
all  bills  of  loading :  and  the  fame  infurance  was  ordered  from  the  Havanna 
to  Carolina,  as  was  made  to  the  Havanna. — Mr.  Crockatt  got  the  io,oool. 
infured  at  four  private  offices,  "  at  and  from  South-Carolina  to  the  Havanna, 
and  at  and  from  thence  back  to  South-Carolina,  with  liberty  to  touch  at 
Providence,  outward  and  homeward  bound,  upon  any  kind  of  goods,  aboard 
the  Trial  (a  flag  of  truce  fliip)  William  Jefferys,  mafler ;"  and  at  the  foot  of 
fome  of  the  policies  are  thefe  words,  viz.  "  warranted  a  flag  of  truce  for  the 
voyage ;"'  and  in  the  others  (after  defcribing  the  voyage)  "  the  fliip   being  a 
flag  of  truce  for  the  voyage." — The  Trial   failed  from  South-Carolina  to  the 
1         ifland  of  Providence  (after  the  captain  had  received  his  credentials  from  the 
governor,    as  commander  of  a  flag  of  truce   fliip)  where   flie   arrived,   and 
difpofed  of  part  of  her  cargo,  and  then  failed  direftly  towards  the  Havanna ; 
and  being  arrived  near  the  entrance  of  the  harbour,  was  feized  by  a  Spanijh 
fliip  of  war,  and  carried   into  the  faid  place  ;    where  her  loading  was  con- 
demned and  fold,    and   the    fliip,    officers,    and    failors,    detained  near  five 
months  ;    at  the   expiration  of  which  time,    the    governor  of  the  Havanna 
permitted  them  to  return,  with  fome  Englifli,  who  had  been  made  prifoners, 
but  without  the  Palatines  they  went  to  reclaim  ;  and  the  governor  gave  the 

captain 


356  MASOUED    SHIP    OR    PROPERTY. 

captain  a  prote6lion  to  fcreen  him  in  his  return    from  being  molefted  by 

men  of  war   or  privateers. Mr.  Crockatt,  on   receiving  advice    of  the 

above-mentioned  lofs,  demanded  the  money  of  the  infurers,  who  thinking 
they  had  reafon  to  deny  the  payment,  fuffered  themfelves  to  be  fued  for  it ; 
and  Mr.  Crockatt,  to  fupport  his  demand,  offered  to  produce  the  invoice, 
bill  of  lading,  credential  letters,  and  an  affidavit  under  the  feal  of  the  province 
of  Carolina,  attefllng  that  the  goods  contained  in  the  invoice  were  (hipped  ; 
and  witneffes,  who  were  ready  to  prove,  viva  voce,  the  capture  and  fale  of 
the  goods  at  the  Havanna,  the  detention  of  the  mariners,  and  that  the  Ihip 
returned  "  as  a  flag  of  truce,"  with  forty-nine  Englifh  prifoners  to  Carolina. 
On  the  other  hand,  the  underwriters,  to  invalidate  the  infurance,  pre- 
tended that  this  was  an  illicit  trade,  that  the  fliip  was  not  a  flag  of  truce,  or 
if  (he  was  fo,  that  the  aflured,  by  warranting  her  to  be  fo,  did  in  effeft  engage 
that  the  goods  fliould  be  exempt  from  feizure  : — that  to  entitle  the  plaintiffs 
to  a  recovery,  it  was  incumbent  on  them  to  fliew  the  condemnation,  and  the 
reafons  of  the  confifcations  at  the  Havanna,  and  many  other  arguments  were 
ufed  to  fet  afide  the  policy  :  but  the  jury  found  a  verdift  for  the  plaintiffs. — 
Lex  Merc.  red.  268.  at  Guildhall,  fitt.  aft.  Hil.  1745. — Hill  &  al.  v.  Spencer. 

2.  Case. — The  Weflerwyck's  Arms,  Capt.  Richard  Horner,  a  Swedifli 
fliip  and  commander,  was  chartered  at  Hamburgh  by  Mr.  Jacob  Bafonquet, 
a  merchant  there,  to  fail  for  London,  and  there  to  take  in  fuch  goods  as  he 
or  his  correfpondent  flnould  put  aboard  her,  and  carry  them  to  fuch  parts  of 
Italy  as  he  fhould  be  direfted  :  a  large  quantity  of  fuch  goods  were  loaded 
aboard  her,  to  the  value  of  30  or  40,0001,  and  among  the  fhippers  the  plaintiff 
was  one  ;  who  took  this  opportunity  of  fending  his  friends  woollens  to  the 
amount  of  1,367!.  12s.  7d.  configned  to  one  Mr.  Anthony  Damiani,  a  merchant 
at  Leghorn,  for  the  ufe  of  feveral  perfons  in  Italy,  by  whofe  orders  they  were 
Ihipped,  though  with  the  circumftance,  that  "  the  property  was  not  to  be 
veiled  in  them,  neither  were  they  to  pay  for  them,  "till  the  goods  were 
arrived  and  delivered  according  to  the  bill  of  loading;"  and  confequently 
remained  the  plaintiff's  property  till  the  afore-mentioned  particulars  were 
complied  with,  which  induced  him  to  get  i,oool.  infured  on  them  ;  and  it 
was  mentioned  in  the  policy,  that  the  goods  were  "  warranted  to  be  inferted 
in  \ht  bills  oi  loading,  for  neutral  account :" — this  was  a  cuftom  during  the 
zoar,  in  order  to  fcreen  goods  from  the  enemy's  feizure  ;  and  the  captains  of 
neutral  fhips  would  not  fign  bills  of  loading  without  this  infertion,  which  was 

Mr.  Boehm's   motive   for  filling   up   his   accordingly. The    fhip,    in  her 

voyage,  was  taken  by  a  Spanifli  privateer,  and  carried  into  Ceuta,  a  Spanifh 
port  on  the  coaft  of  Barbary  ;  where  the  goods  were  condemned  as  lawful 
prize,  as  appears  by  a  copy  and  tranflation  of  the  fentence  of  condemnation  ; 
though  the  (hip  was  fet  at  liberty,  and  the  captain,  after  fruitlefsly  foliciting 
the  releafe  of  the  cargo  at  Ceuta,  went  to  Cadiz  to  reclaim  it ;  where,  not- 
withftanding  he  was  joined  in  felicitations  by  the  Swedifli  conful,  and  both 
afferted  the  honour  of  the  flag,  and  the  neutral  property  of  the  merchandife, 
they  could  prevail  nothing  towards  altering  of  the  fentence,  which  flood 

confirmed  ; 


M  A  S  O  U  E  D     SHIP    OR    PROPERTY. 

confirmed  ;  though,  whilfl  this  was  tranfatling,  Mr.  Boehm  demanded  his 
infurance  of  the  underwriters  ;  who  being  convinced  of  the  juftnefs  thereof, 
came  to  the  agreement  of  paying  him  50I,  percent,  and  accordingly  indorfed 
the  policy  in  the  following  manner,  viz. — "'  We,  whole  names  are  hereunto 
fubfcribed,  do  agree  to  pay  unto  the  allured  50I.  per  cent,  on  our  feveral 
fubfcriptions  on  this  policy,  in  a  month  from  the  date  hereof;  but  in  cafe  the 
goods  are  reflored  in  fafety,  and  are  difcharged  according  to  the  tenor  of  the 
policy,  the  faid  50I.  per  cent,  are  to  be  repaid  to  us  by  the  alfured,  we 
engaging  to  make  good  any  average  or  damages  that  may  enfue  by  the 
detention  of  the  faid  goods :'' — figned  by  all  the  underwriters. And  after- 
wards there  was  likewife  indorfed  the  following  words,  viz. — "  Whereas  the 
within-mentioned  (hip,  Weiferwyck's  Arms,  Capt.  Horner,  from  London  tc 
Leghorn,  was  taken  by  the  Spaniards  in  July  1746,  and  forcibly  carried  into 
Ceuta,  where  fhe  has  been  detained  with  her  cargo  ever  (ince,  and,  notwith- 
ftanding  all  the  application  and  endeavours  that  have  been  made  ufe  of  by 
the  alTured  and  his  agents  for  their  releafe,  they  having  hitherto  proved 
fruitlefs  and  without  fuccefs  ;  therefore  we  the  underwriters  on  this  policy, 
do  agree  to  pay  Mr.  Thomas  Boehm,  the  alfured,  the  remaining  48I.  per 
cent,  in  one  month  from  the  date  hereof,  which  the  faid  Mr.  Tl  o  nas  Boehm 
obliges  himfelf  to  refund  and  pay  back  again,  in  cafe  his  faid  goods  (hould 
hereafter  be  releafed,  and  arrive  fafe  at  Leghorn,  according  to  the  tenor  of 
this  policy ;  we  engaging  ourfelves  to  make  good  any  average  or  damage 
that  may  enfue  in  this  adventure ;  and  the  affurcd  promifes  and  obliges 
himfelf  to  continue  his  utmofl  endeavours,  that  the  faid  goods  may  be  rellored 

and  difcharged." The  prefent  defendant   only  figned   the   firit   of  thefe 

agreements,  but  never  paid  the  money  purfuant  thereto,  though  all  the  reft 
of  the  underwriters  figned  both,  and  have  paid  their  money  long  ago  : — the 
plaintiff  proved,  that  the  defendant  was  acquainted,  when  he  underwrote  the 
policy,  with  the  reafon  for  inferiing  the  words,  that  the  goods  fhould  be 
warranted  to  be  inferted  in  the  hills  of  lading  for  neutral  account :  he  alfo 
proved  his  intereft,  and  that  "  the  goods  were  his  'till  delivered  1"  tliat  all 
the  underwriters  on  this  fliip  have  paid  their  loffes,  to  the  aforc-mentioned 
value  of  between  30  and  40,0001.  and  that  even  the  defendant  liimfelf  had 
paid  one  on  her :  he  alfo  proved  by  a  perfon,  viva  voce,  who  had  feen  the 
fhip  at  Cadiz,  and  heard  the  captain  and  Swedifh  conful  difcourfe  about  the 
folicitations  for  freeing  the  goods  ;  which  joined  to  the  before-mentioned 
copy  of  her  condemnation,  he  thought  fufficient  proof  of  the  lofs :  but  the 
defendant,  being  of  a  contrary  opinion,  and  not  fatisfied  therewith,  flood  a 
trial,  when  the  jury  found  a  verdift  for  the  plaintiff. — Lex  Merc.  red.  270. 
Mich.  1748. — Boehm  v.  Snoio. 

3.  The  following  <?xi5r  (2^  from  the  memoirs  of  Sir  Leonine  Jenkins  (who 
was  judge  of  the  court  of  admiralty  at  Loudon)  is  very  interefling,  and  will 
greatly  elucidate  the  prefent  fubjeft  ; 

4  T  To 


358  MASQUED    SHIP    OR    PROPERTY. 

To  the  Lords  CommiJJioners  for  Prizes. 

Wejlninjler,  ijlhof  Sep.  1666. 
My  Lords. 

THE  St.  George,  of  Plamburgh,  was  taken  between  three  or  four  leagues  of  the  Vhe, 
playing  in  a  contrary  wind,  as  the  mailer  clcpolcs,  her  courfe  from  Hamburgii  to 
Rouen :  being  brought  into  Harwich,  I  do  not  find  that  any  of  her  company  was  examined ; 
vhich  is  an  omiflion  your  lordfhips,  I  doubt  not,  will  think  worth  preventing  for  the  future. 
The  mafter,  who  alone  is  come  up  hither,  I  have  caufed  to  be  examined  :  he  fwears  that 
the  fliip  and  lading  do  entirely  belong  to  Hamburgh,  that  his  lliip  has  not  been  in  Holland 
thefe  nine  years;  tliat  his  papers  are  all  true,  and  his  company  all  free  :  his  fea-bricf 
makes  likcwife  nine  burghers  of  Hamburgh  to  be  owners  of  this  fliip  ;  and  I  find  her  upon 
the  firft  lift  which  that  city  gave  in  to  his  majefty,  upon  occafion  of  this  war.  The  bills 
of  lading  found  on  board  are  thirty-five  in  all,  and  there  are  attcftations  of  the  oaths  which 
the  refpeflive  proprietors  have  made  before  their  magiftrates,  correfponding  exaBly  with 
the  feveral  particulars  in  the  bills  of  lading,  which  attcftations  are  of  more  weight  and 
credit,  in  that  they  were  obtained  before  the  fetting  out  of  this  ftiip.  The  cargo  is  lead, 
wool,  ftecl,  wire,  and  copper  ware;  and  they  arc  not  only  Hamburghers  (as  the  mafter  it 
feems  apprehended)  that  are  the  laders  of  the  fliip,  but  there  are  others  of  Brcflaw,  Bremen, 
Antwei-p,  and  Dantzick,  that  arc  made,  in  the  attcftations,  proprietors  of  feveral  parcels  of 
this  lading. — Upon  occafion  of  thefe  attcftations  I  fliall  crave  leave  to  offer  unto  your 
lordftiips  what  has  fallen  not  long  fince  under  my  obfervation. — Thefe  Hamburghers  (as 
there  are  fome)  who  favour  the  Englifii  trade,  make  no  difficulty  (in  order  to  obtain  the 
attcftations  in  common  form)  lofwear  that  thofe  very  goods,  which  Engli/Jmen  do  buy  in 
Hamburgh,  with  their  own  money,  and  which  arc  to  be  delivered  here  in  England,  upon 
the  proper  and  fole  account  of  Engliflimen,  as  foon  as  they  come  to  fafe  port,  do  belong  to 
the  Vidcrs,  \.  c.  Hamburghers;  and  that  no  other  perfon  can  or  ought  to  pretend  to  any 
intereft  in  them.  The  way  that  they  falve  this  cafe  of  confcience  (as  I  have  feen  them 
explain  themfelves  in  their  letters)  is,  "  by  taking  the  ri/que  of  the  goods  upon  themfeives 
7vhik  the  goods  are  atfea,  and  in  danger  of  the  enemy ;  and  for  fo  doing,  they  have  fo 
much  per  cent. ;"  yet  this  rifque  of  theirs  is  fo  limited,  that  as  it  refpe6h  no  other  danger  of 
die  fea,  but  that  from  the  enemies  of  this  crown,  fo  they  are  bound  to  no  more  but  to  ufe 
their  utmoft  endeavours  and  intereft  to  make  out  a  claim  ;  the  lofs  being  the  EngU/Jnnan'i 
if  the  fentence  llioukl,  by  violent  and  exorbitant  proceedings,  go  againft  the  Ilamburgher. 
— It  is  not  improbable,  but  that  the  Dutch  and  French  have  likewife  fuch  friends  at 
Hamburgh,  as  will  lend  them  their  names,  and  their  confciences  too,  upon  the  like  terms  :  but 
the  fure  way  to  obviate  the/raud  of  fuch  mental  refervations  and  equivocations  (for  againft 
do\innght  perjury  there  is  no  fence,  as  long  as  oaths  are,  and  there  muft  be  fomething  or 
other,  decifive  in  judgment)  would  be,  as  I  do,  with  all  fubmiftion  polfible  to  your 
lordftiips,  conceive,  that  the  fenatc  would  plcafe  to  order  all  deponents  to  be  interrogated 
in  fuch  a  form,  as  the  king's  proQor  fliall  fend  hence  to  the  deputies  for  taking  thefe  oaths ; 
or  elfe  that  fuch  laders,  as  defire  a  benefit  here  from  attcftations,  fliould  fatisfy  his  majefty's 
minifters  in  that  town  touching  tlieir  rcfpeftive  properties  : — yet  I  nuift  not  deny  that  this 
amounts  to  little  more  than  what  is  already  done,  if  I  be  truly  informed  by  the  fccretary 
of  the  Hamburgh  agent;  for,  letting  him  know  tliat  I  dcfircd  to  learn  from  his  mafters, 
what  the  foleninity  and  circumfpe6lion  was  which  the  deputies  ufe  at  Hamburgh  before 
they  grant  their  atteftation  under  feal ;  he  writes  unto  me  that  "  every  man  that  obtains 
that  atteftation  fnxars  explicitly,  that  none  in  enmity  wiih  the  king  of  Great-Britain  has  any 
intereft  in  the  goods  touching  whicii  he  makes  oath." — Among  the  laders,  my  lords,  I 
found  two  names  which  I  guelfed  to  be  French,  and  the  fccretary  who  folicits  this  bufinels 
cotild  not  but  acknowledge  the  perfons  (Du  Pric  and  Heron)  to  be  Frenchmen  born; 

but 


I 


MASTER.  35y 

but  the  falvo  that  he  and  his  fhipper  gave  me  upon  oath  is,  that  Da  Prie  had  lived  in 
Hamburgh  with  his  wife  and  family  for  above  thefe  twenty  years ;  and  .that  the  other  had 
lived  there  likewife  thefe  eight  years :  which  regularly  is  fufficicm  in  law  to  excufe  him, 
as  I  humbly  conceive,  from  being  llibjetted  to  the  fame  reprifals  with  the  red  of  his 
countrymen  :  the  Hamburghers  at  leaft  do  conceive  fo,  for  this  (hipper  fwears,  that  he 
refufed  taking  in  Heron's  goods,  till  the  fenate  fent  a  public  oiiicer  to  let  him  know,  that 
he  was  to  trade  for  him  as  freely  as  for  any  burgher  of  their  city.  If  this  be  true,  it  is  a 
ftrong  prefumption  that  the  reft  of  the  laders  arc,  as  their  attellations  fpeak  them  to  be, 
in   bojia  Jide. 

I  am,    &c, 

L.  Jenkins. 

4.  Remarks. — Intimeof  war,  nothing  is  more  common  than  the  mafquing 
of  fhips,  and  their  cargoes,  as  well  on  the  part  of  enemies,  as  on  that  of  the 
fubje£ls  of  neutral  powers:  and  the  6.  art.  of  tit.  g.  b.  3.  of  the  6?r^z/z.  of 
France  of  1681,  has  thofe  mafquings  in  view,  where  it  fays,  "  the  veffels  and 
their  cargoes,  in  which  no  charter-parties,  bills  of  lading,  or  invoices  arc 
found,  fliall  be  good  prize :"  deeming,  in  fuch  cafe,  the  deflination  of  the 
{hip  and  cargo  evidently  difguifed,  from  whence  it  is  neceflarily  prefumed 
that  the  whole  belongs  to,  or  is  for  account  of,  the  enemy. — There  is  a  fimilar 
regulation  in  the  8th  article  of  the  Ordin.  oi  Spain  of  1718  : — and  as  well  by 
the  Ordin.  o^  France  of  the  5th  of  Sept.  1708,  as  later  regulations,  and  indeed 
the  general  law  of  nations,  "  every  velfel  taken,  whofe  papers  fliould  have  been 
thrown  overboard,  is,  together  with  her  cargo,  to  be  adjtidged  good  prize." — 
Inftances  have  occurred,  during  the  prefent  war,  of  mailers  of  neutral  fliips, 
when  vifited  by  cruifers  of  the  belligerent  powers,  pretending,  nvij  Jwearing 
they  had  accidentally  dropped  their  papers  into  the  fea,  in  going  on  board  the 
cruifer ;  in  confequence  whereof  their  fliips  and  cargoes  have  been  taken  and 
confifcated ;  and  total  loffes  paid  on  them  by  our  infurers  :  as  was  the  cafe  of 
the  fliip  and  cargo,  the  Giovanna,  Capt.  Zane,  fromTriefte,  configned  to  Meffrs. 
Wombwell,  in  London,  in  Sept.  1778,  on  which  I  was  myfelf  an  infurer,  and 
which  was  taken   and    carried  into   Almeria,     there    condemned,    and    the 

fentence  confirmed  on  appeal  to  the  court  of  France. Prudent  merchants 

and  underwriters  will  perceive  from  hence,  as  well  as  from  the  preceding 
memorial  of  Sir  Leonine  Jenkins,  the  dangers  to  which  they  are  expofcd  in 
time  of  war,  by  concerning  themfelves  with  numbers  of  people,  and  in  fliips 
whereof  they  know  not  all  the  circimjlances : — befides  that  every  one  fliould 
avoid  all  fuch  cloaked  dealings,  whereby  the  flate  in  Avhich  he  lives  may  be 
expofed  to  fuffer  more  than  he  in  private  can  get  by  them. 

£;.  See  Claim,  Concealment,  Document,  Enemy,  Fraud,  Freedom  of  Naviga- 
tion, Infurcd,  Lazo  of  Nations,  Mifiakc,  Neutral  Ship  or  Property,  Pafjport, 
Property,   War. 

MASTER. 

1.     A   '^  ^^^^   whole  charge  of  the  velTel  and  loading  are  committed  to  the 
-^^  mailer,   the   owners    fliould   be  very   careful  who  they  admit  to  be 

commander 


360  MASTER. 

commander  of  their  fliip  ;  and  he  ought  to  be  a  perfon  of  honefty,  as  well 
as  ability  and  experience  : — the  law  looks  upon  him  as  an  officer,  who  mufl 
give  an  account  for  whatever  he  has  under  his  care,  and  on  failure  to  render 
fatisfaftion ;  therefore,  if  any  misfortune  happens  by  the  negligence,  xoil- 
fulnefs,  or  ignorance,  of  lumfclf  or  his  mariners,  he  muft  be  anfwerable  for 
it.  As  foon  as  goods  and  merchandife  are  laden  aboard  the  fliip,  whether 
{he  be  riding  in  port,  haven,  or  any  other  part  of  the  feas,  he  that  is  mailer 
is  chargeable  therewith  ;  and,  if  the  fame  be  there  loft  or  purloined,  or 
fuflain  any  damage,  either  in  the  haven  or  port  before,  or  upon  the  feas 
after  flie  is  in  her  voyage,  he  mufl  anfwer  the  damage  ;  for  the  very  lading 
of  the  goods  on  board  the  fhip  doth  fubjetl;  the  maflcr  to  anfwer  the  fame. — 
Hob.  Rep.  11. — MolLoy,  197. 

2.  If  a  merchant  lades  goods  aboard  a  fhip,  to  be  tranfported  at  a 
reafonable  reward  of  freight  to  be  paid  to  the  owners,  and  in  the  night  time, 
while  the  fhip  rides  in  the  Thames,  notwithflanding  a  competent  number  of 
men  are  left  on  board  for  the  guard  of  the  fhip  and  goods,  yet  feveral 
perfbns,  under  pretence  of  impreffing  feamen,  feize  on  the  men  aboard  and 
take  away  the  goods,  an  aftion  will  lie  againft  the  owners,  and  the  owners 
pay  the  mafter  ;  fo  that  the  money  of  the  merchant  is  but  handed  over  by 
them  to  the  mafler :  adjudged  and  faid,  that  tliough  by  the  admiral  law, 
the  mafler  is  not  chargeable  for  a  fatal  damage,  as  in  the  cafe  of  pirates, 
ftorm,  &c.  where  there  is  no  negligence  in  him  ;  yet  becaufe  this  fhip  was 
within  the   body  of  the    county,  this  aftion  muft  not  be  meafured   by  the 

rules  of  that  law. — 1  Vent,  igo,  233  ;    1  Mod.  85  ;    3  Lev.  259. Holt,  C.  J. 

faid,  the  mafler  is  chargeable  in  refpeft  of  his  wages,  and  the  proprietors  in 
refpeft  of  the  freight:  Molloy,  209,  210.:  and  "  he  muft  fee  forth-coming 
all  that  is  delivered  to  him,  let  what  will  happen  by  fire,  thieves,  &c.  the  a6l 
of  God  or  any  enemy,  perils  and  dangers  of  the  fca,  only  excepted." — The 
mafter  is  more  particularly  anfwerable  for  misfortunes  which  happen  through 
the  negligence,  wilfulnefs,  or  ignorance  of  himfelf  or  his  mariners. — Raym. 
220;   2Kcb.S66;    ^  Keb.  72,  112,  132,  135. 

3.  If  a  mafter  of  a  fiiip  lets  out  his  fliip  to  freight,  and  then  receives 
his  compliment,  and  afterwards  takes  in  goods  without  leave  of  the  freighter, 
and  a  ftorm  arifes  at  fea,  and  part  of  the  freighters  goods  are  caft  over- 
board, the  remaining  goods  are  not  fubjeft  to  the  average,  but  the  mafter 
mufl  make  good  the  lofs  out  of  his  own  purfe. — Molloy,  b.  2.  c.  6.  f.  1^.  cites 
Grotius  Introd.  Jur.  Holl.  329.  Vinius  &  Peckius  Comm. 

4.  If  a  fliip  be  infured  under  captain  I.  S.  the  part-owners  may  change  the 
captain  without  notice  to  the  infurers :  quoere  tamen  ;  for  it  might  be  that 
the  confidence  and  knowledge  of  the  captain,  might  be  an  encouragement 
to  the  infurers. — Per  Holt.    12  Mod,  325.  Anon. 

^.    Case. 


MASTER.  36, 

5.  Case. — Aftion  againft  A.  and  B.  part-owners  of  a  fliip,  for  that  he  put 
goods  on  board,  and  the  defendants  undertook  to  carry  them  fafely  for  hire  ; 
but  yet  were  fo  neghgent,  that  the  goods  were  fpoiled  :  upon  not  guilty 
pleaded,  in  evidence  it  appeared,  that  C.  and  D.  were  alfo  part-owners,  and 
that  the  (hip  was  under  the  care  of  a  maRer,  to  whom  the  goods  were 
delivered ;  and  this  being  found  fpecially,  it  was  argued  pro  quer.  that 
the  aftion  is  grounded  on  the  wrong,  and  may  be  againft  all  or  any  of 
the  proprietors.— There  was  alfo  another  doubt  flartcd,  and  that  was, 
whether  the  owners  were  liable,  when  in  truth  they  did  not  undertake  ;  but 
in  faft  the  mafler  fuper  fe  fufcepit  ? — Eyre  jultice,  held,  there  was  no 
difference  betVv-een  a  land  carrier  and  a  water  carrier,  and  that  the  maffer  of 
a  (hip  was  no  more  than  a  fervant  to  the  owners  in  the  eye  of  the  law  ;  and 
that  the  power  he  has  of  hypothecation,  &c.  is  by  the  civil  law  :  et  per 
Holt,  C.  J.  the  owners  are  liable  in  refpeft  of  the  freight,  and  as  employing 
the  maffer  ;  for  whoever  cmplo)'s  another  is  anfwerable  for  him,  and  under- 
takes for  his  care  to  all  that  make  ufe  of  him  :  2dly,  the  court  held,  that  all 
the  owners  were  liable  ;  for  they  are  charged  in  point  of  contraft  as 
employers,  and  are  all  equally  entitled  to  the  freight :  either  matter  or  owner 
may  bring  an  aftion  for  the  freight ;  but  if  the  Owners  bring  the  aftion  they 
mult  all  join,  ergo  they  mufl  all  be  joined ;  as  the  freight  belongs  to  all, 
fo  all  are  equally  undertaking;  and  a  breach  of  truft  in  one,  is  a  breach  of 
trull  in  all :  as  where  two  make  one  officer,  the  aft  of  one  is  the  aft  of  the 
other :  3dly,  the  court  held  this  was  not  an  aftion  "  ex  delifto,"  but  "  ex 
quafi  contraftu  ;"  and  it  was  not  the  contraft  of  one,  but  all  ;  that  there  M'as 
no  other  tort  but  a  breach  of  truft  :  therefore  the  court  gave  judgment  for 
the  defendant,  becaufe  all  the  owners  were  not  joined. — Salk.  440.  Mich. 
1  Will,  and  Mar. — Bo/on  v.  Sandford. 

6.  Case. — Holt,  C.  J.  faid,  inn-keepers,  carriers,  hoymen,  and  mafters 
of  (hips,  receive  a  reward,  which  is  the  reafon  why  they  are  bound  to  keep 
fafely,  and  anfwerall  neglcds  of  thofe  that  aft  under  them,  and  fo  they  would 
be,  though  they  (liould  exprefsly  caution  againft  it :  and  this  cafe  is  within 
the  fame  reafon  with  thofe  cafes  that  make  men  refponfible  for  negligent 
keeping,  viz.  that  if  they  could  not  be  charged  without  affigning  a  particular 
negleft,  they  might  cheat  any  man  living,  and  it  would  not  be  in  his  power 
to  prove  it.  It  is  a  hard  thing  to  charge  a  carrier ;  but  if  he  ffiould  not  be 
charged,  he  might  keep  a  correfpondence  with  thieves,  and  cheat  the  owner 
of  his  goods,  and  he  ffiould  never  be  able  to  prove  it :  it  would  be  hard  in 
this  cafe  to  put   the  plaintiff  to    prove  a  particular  negleft  among  fuch  a 

multitude  of  under   officers. Matters    and  mariners    are    anfwerable   for 

goods  lott   by  their  negleft. A  matter  may  reimburfe  himfelf  out  of  the 

mariners  wages  for  a  lofs  happening  by  their  negligence. In  the  cafe  of 

Mors  ?Lr\6.  Sluce,  i  Vent.  190,  238.  it  was  adjudged,  that  "  the  matter  of  a 
fhip  was  liable  for  the  goods  of  which  the  Ihip  was  robbed  in  the  river :"  and 
the  reafons  given  were,  ift,  becaufe  he  was  an  officer  known;  2dly,  becaufe 
he  received  his  falary  out  of  that  which  was  paid  for  the  freight. — Salh.  18. 
Eaft.    12  W.  3. — Raym.6^0. — Lane  v.  CoUon. 

4  U  7.     Case. 


362  MASTER. 

7,  Case. — WTierea  man  carrying  goods  is  of  a  public  employment,  as  a 
carrier,  hoyman,  &c.  he  mufl:  aniwer  for  all  events,  excepting  the  afts  of 
God,  and  the  enemies  of  the  king;  and  this  is  a  political  eflablininicnt,  for 
the  fafcty  of  all  perfons  concerned,  and  whofe  ailairs  necefhtate  them  to 
intrufl  iucli  carriers  :  for  by  this  means  all  private  combinations  between 
them  and  highwaymen  and  other  robbers,  are  prevented,  which  cannot 
eafdy  be  difcovered. — Rep.  Temp.  Holt,  131.  Trin.  2.  Ann. — Coggs  v. 
Bernard, 

8.  By  Stat.  22  and  23  Car.  2.  c.  11.  f.  2. — Where  any  goods  fliall.be 
laden  on  board  any  Englifh  fliip  of  the  burthen  of  two  hundred  tons  or 
upwards,  and  mounted  with  fixteen  guns  or  more  ;  if  the  commander  fliall 
yield  up  the  goods  to  any  Turkifli  fliips,  or  to  any  pirates  or  fea  rovers, 
without  fighting,  he  fhall,  upon  proof  thereof  made  in  the  court  of  admiralty^ 
be  incapable  of  taking  charge  of  any  Englifli  fliip  as  commander  ;  and  if  he 
fhall  thereafter  take  upon  him  to  command  any  Englifli  fliip,  he  fliall  fuffer 
Jmprifonment  by  warrant  from  the  faid  court  during  fix  months  for  every 
offence ;  and  in  cafe  the  perfons  taking  the  faid  goods  fliall  releafe  the  fliip, 
or  pay  unto  the  maft;er  any  money  or  goods  for  freight  or  other  reward,  the 
faid  goods  or  money,  or  the  value  thereof,  as  alio  the  mafl^er's  part  of  fuch 
fhip  fo  releafed,  fliall  be  liable  to  repair  the  perfons  whofe  goods  were  taken, 
by  aftion  in  the  court  of  admiralty  ;  and  in  cafe  the  commander's  part  of  the 
fhip,  together  with  fuch  money  and  goods,  fliall  not  be  fufiicient  to  repair  all 
the  damages  fuftained,  the  reparations  recovered  on  the  mafl.er's  part  of 
the  fhip  fliall  be  divided  pro  rata  amongfl:  the  perfons  profecuting  and  proving 
their  damages,  and  the   perfons  damaged   fliall  have  their  aftion  againft  the 

j'nafl:er  for  the  remainder. S.  3.  No  mafter   of  any    Englifli  fliip,  being 

at   fea,  and   having  difcovered  any  fliip  to  be  a  Turkifli  fliip,  pirate,  or  fea 

rover,   fliall    depart  out  of  his  fliip. S.  4.  If  the  mafl:er  of  any  Englifli 

fliip,  though  not  of  the  burden  of  200  tons,  or  mounted  with  fixteen  guns, 
fhall  yield  his  fhip  unto  any  Turkifli  fliip,  pirate,  or  fea  rover  (not  having 
at  leafl;  his  double  number  of  guns)  without   fighting,   fuch  maRer  fliall  be 

liable  to  all  the  penalties  in   this    aft. S.   7.  If  the    mariners    or  inferior 

officers  of  any  Englifh  fhip,  laden  with  goods,  fliall  decline  or  refufe  to  fight 
and  defend  the  fhip,  when  they  fliall  be  thereunto  commanded  by  the 
mafl:er,  or  fhall  utter  any  words  to  difcourage  the  other  mariners  from 
defending  the  fhip,  every  mariner,  who  fliall  be  found  guilty  of  declining  or 
refufing  as  aforefaid,  flball  lofe  all  his  wages  due  to  him,  together  with  luch 
goods  as  he  hath  in  his  fliip,  and  fuff'er  imprifonment  not  exceeding  fix 
months,  and  fliall  during  fuch  time  be  kept  to  hard  labour  for  his 
maintenance, 

g.     The  mafter  who  may  have  infurance  made  on  goods  loadcn  in  his 
veflel,  fhall,  in  cafe  of  lofs,  be  obliged  to  prove  the  buying  of  diem,  and 

produce  a  bill  of  lading  figned  by  the  purfer  or  mate. A  mafler  who  fliali 

be  convifted  of  having  delivered  up  his  fliip  to  enemies,  or  to  have  caufcd 
her  mtentionally  to  be  loft,  fliall  be  puniflied  with  death. — Ordin.  of  France. 

10.     The 


MISTAKE.  363 

10.  The  captain  or  mailer  that  fhall  load  goods  in  his  fliip,  for  his  own 
account,  or  by  commiflTion,  and  fliall  get  them  infured,  fhall  be  obliged  to 
leave  in  the  power  of  a  perfon  of  the  infurer's  allowing,  a  bill  of  loading, 
and  invoice,  and  account  of  them^  and  their  value,  figned  by  the  pilot,  or 
mate  of  the  fame  (hip  ;  under  penalty  of  the  infurance  being  vacated,  in  cafe 

of  misfortune. Whereas  experience  has  demonflrated,  that  fome  captains, 

or  mafters  of  fliips  (by  reafon  of  being  infured,  or  for  not  having  a  concern 
in  them)  feeing  fome  other  fhip  at  a  diftance,  without  encountering  it,  or 
making  refiftance,  or  knowing  whether  fhe  is  a  friend  or  enemy,  failing  in 
their  obligation,  have  forfaken  them,  and  thrown  themfelves  afliore,  to  the 
great  prejudice  of  the  concerned  in  them,  and  their  cargoes  ;  it  is  ordained, 
that  in  fuch  cafes  the  infurances  that  fhall  be  made  upon  the  hulls  of  fuch 
fhips  and  their  furniture  fo  abandoned,  without  being  really  taken,  be  void ; 
though  without  underftanding  hereby,  that  thofe  who  fliall  be  affurers  of  the 
goods,  remain  free  ;  on  the  contrary  they  ought  to  pay  the  fums  infured  upon 
the  faid  goods,  in  regard  that  the  owners  of  them  had  no  fhare  in  the 
negligence  and  fault  of  the  captain  and  his  crew. — Ordin.  of  Bilb. 

11.  Masters  are  forbid  to  pafs  the  night  from  on  board  their  fhips, 
without  necefTity. — Ordin.  of  the  Hanfe-Towns. 

12.  All  maflers  of  fhips  and  feamen  fliall  be  obliged  to  look  well  after, 
and  take  due  care  of  fhip  and  cargo  ;  and  in  cafe  the  fame  fhould  run  any 
rifque,  or  fuffer  any  damage  by  xhtxv  fault,  negligence,  ignorance,  connivance, 
or  means,  they  fhall  be  bound  to  make  the  fame  good  again. — Ordin.  ofAntw. 

13.  See  Prelim.  Difc.  37,  38,  40,  50,  54,  79.  Abandonment,  Accident, 
Barratry,  Bottomry,  Claim,  Condemnation,  Confifcation,  Contraband,  Contri- 
bution, Convoy,  Copenhagen,  Cordage,  Damage,  Deviation,  Document,  Embez- 
zlement, Foreign  Ships,  Fraud,  Freedom  of  Navigation,  Hypothecation,  Illegality, 
Mariner,  Negligence,  Piracy,  Repair,  Seafbn,  Seizure,  Stozcage,  Theft,  Wages^ 
War. 

MISREPRESENTATION. 

See  Prelim.  Difc.  28.  Alteration  of  Policy  Voyage  or  Rifque,  Broker,  Conceal- 
vientf  DatCi  Fraud,  Intelligence,  Lives, 


MISTAKE. 

1.  /^ASE. — Mr.  Crifp  being  at  the  Wefl-Indies,  fent  a  lettertoMr.  Batesto 
^^  infure  goods  on  the  Mary  Galley,  of  St.  Chriflopher's,  Capt.  A.  Hill, 
commander,  at  London  ;  Bates  Carried  the  letter  to  Stubbs,  who  writ  policies, 
and  he,  by  miflake,  made  the  affurance  on  the  Mary,  Capt.  Hazlewood  :  this 
policy  thus  made  was  fubfcribed  by  the  defendant :  the  Mary  Galley  was  loft, 

and 


S64  MISTAKE. 

and  then  Stubbs  applied  to  the  infurers  to  confent  to  alter  the  policy,  to 
which  they  agreed,  and  the  miftake  was  mended. — It  was  objected  at  the 
trial,  that  the  Mary  was  a  ftouter  fliip  than  the  Mary  Galley,  and  that  the 
infurers  ought  to  have  an  increafe  of  premium  for  the  alteration  : — but  it  was 
held  by  Holt,  chief  jullice,  that  the  aftion  will  lay,  and  that  the  millake 
might  be  fet  right,  and  that  Stubbs  was  a  good  witnefs ;  and  he  cited  this  cafe 
which  happened  when  Pemberton  was  chief  juftice  ;  an  infurance  was  made 
from  Archangel  to  the  Downs,  and  from  the  Downs  to  Leghorn ;  but  there 
was  a  parol  agreement  at  the  fame  time,  that  the  policy  fhould  not  commence 
'till  the  fliip  came  to  fuch  a  place  ;  it  was  held  the  parol  agreement  fhould 
not  avoid  the  writing. — 2  Salk.  444.  at  Guildhall,  Dec.  3,  1703. — Bates  v. 
Graham  &  al. 

2.  Case. — The  plaintiff  infured  a  fliip,  at  and  from  London  to  Oftend, 
from  thence  to  Rotterdam,  from  thence  to  the  Canaries,  warranted  an  Oftend 
fliip  ;  which  fliip  was  afterward  taken  : — the  bill  was  brought  to  have  the 
policy  reftified ;  for  that  the  intention  of  the  parties  was  millaken  therein : 
which  was  that  the  warranty  fliould  not  have  been  fo  general,  viz.  fliould  take 
place  from  Oftend  only,  not  from  London:  and  though  courts  of  law  will  in 
the  cafes  of  policies  by  the  ufage  of  merchants  a.dmit  parol  evidence,  yet  not 
fo  as  to  reftify  a  miftake  on  parol  evidence,  as  this  court  will ;  as  by  his 
lordfliip  in  the  cafe  of  King-Street,  St.  Margaret's,  and  in  Motteux  v.  London- 
AJfurance-Company,  December  1739,  where  the  queftion  was,  whether  the 
fliip  was  to  be  infured  in  port,  or  in  the  voyage  to  London,  having  been  loft 
in  port  ?  The  evidence  here  was  the  depofition  of  Knox,  mIio  tranfafted  on 
the  part  of  the  company,  that  the  plaintiff^  applied  to  him  to  infure  the  fliip; 
and  that  he  believed  that  the  plaintiff  told  him,  fhe  was  or  had  been  an 
Englifli  fhip,  and  might  fay  fomething  concerning  the  manner  or  intent  of 
making  her  an  Oftend  fhip ;  but  that  his  anfwer  was,  that  he  would  not 
enter  into  the  manner,  but  that  if  the  plaintiff^  would  warrant  her  to  be  an 
OJtend  Jhip,  he  would  infure :  and  that  on  thefe  terms  and  no  other  the 
agreement  was  made: — there  was  the  evidence  of  another  perfon,  who  varied 
from  Knox  -,  but  it  was  faid,  the  circumftances  fpoke  ftronger  than  anv 
evidence,  that  the  intent  was,  that  fhe  fhould  be  an  Oftend  fhip  at  the  time 
of  leaving  Oftend,  fiie  being  then  in  London,  and  could  not  be  an  Oftend 
fhip,  ^\•ithout  going  to  Oftend ;  for  which  proof  was  read  that  it  was 
neceflary  fhe  fhould  be  regiftered : — fuch  was  the  imagination  of  the  parties, 
and  it  is  abfurd  to  fuppofe,  the  plaintiff  would  warrant  her  to  be  fo,  when  he 
knew  fhe  was  not:  although  in  general,  infurances  are  proper  to  be  tried  at 
law,  yet  not  always  fo ;  this  court  fending  to  law  under  particular  direflions  : 
the  plaintift^'s  equity  is,  that  this  policy,  which  at  law  muft  ftand  on  its  own 
foundation,  is  not  agreeable  to  the  intent  of  the  parties  ;  and  a  miflake  is  a 
profeft  head  of  equity,  which  cannot  be  proved  but  by  the  perfons  contract- 
ing ;  nor  can  the  plaintiff  make  ufe  of  his  material  evidence  at  law : — that 
this  court  will  interpofe  in  fuch  cafes,  appears  from  Callaivay  v.  Ward,  1728, 
which  was  a  bill  againft  the   infurers  of  the  Sun  Fire-Ofhce ;    where  the 

plaintitf 


'o*- 


MISTAKE.  365 

plaintiff  had  the  leafe  of  a  houfe  infured;  and,  before  it's  expiration,  entered 
into  an  agreement  for  a  new  leafe :  but  before  execution,  though  after 
expiration  of  the  leafe,  the  houfe  was  burned  :  upon  application  for  payment, 
as  within  the  policy,  on  the  foot  of  this  parol  agreement,  the  office  denied  it, 
for  that  at  the  time  of  burning  it  was  not  the  plaintiff's  houfe :  Lord  King 
determined  for  the  plaintiff,  upon  the  ground  of  confidering  that  as  done, 
which  ought  to  be  done  :  yet  that  was  as  little  favourable  for  the  interpofition 
of  the  court  as  could  be,  and  the  Houfe  of  Lords  was  of  the  fame  opinion. 
— As  to  the  objeftion,  that  this  is  an  illegal  trade,  and  therefore  the  plaintiff, 
party  to  an  illicit  contract,  is  not  entitled  to  recover  ;  that  argument  cannot 
lie  in  the  mouth  of  the  defendants,  who  were  acquainted  with  it,  and  ought 
to  pay  the  lofs  :  this,  though  a  trading  to  an  enemy's  port  in  time  of  w^ar,  is 
not  an  illicit  correfpondence  ;  the  cafe  of  D'Oliphant  v.  South-Sea  Company, 
and  the  cafe  of  Sir  Robert  Nightingale,  anfwering  that  objection  :  and  though 
the    law  prohibits    the   importation   of  enemy  s  goods,   it  prohibits    not   the 

carrying  the  growth  of  this  country,  unlefs  provifions,  to  enemies. Lord 

Chancellor :  no  doubt,  but  this  court  has  jurifditlion  to  relieve  in  refpecl  of 

a  plain  miftake  in  contrafts  in  writing,  as  well  as  againft  frauds  in  contrafts  : 

fo  that  if  reduced  into  writing  contrary  to  the  intent  of  the  parties,  on  proper 

proof  that  would  be  reftified :  but  the  plaintiff  comes  to  do  this  in  the  harffieft 

cafe  that  can  happen  ;  of  a  policy,  after  the  event  and  lofs  happened,  to  vary 

the  contract  fo  as  to  turn  the  lofs  on  that  infurer,  wlio  otherwife,  it  is  admitted, 

cannot  be  charged  :    however,  if  the  cafe  is  fo  ftrong  as  to  require  it,  the 

court  ought  to  do  it : — the  Jirp  quejlion  is,  whether  it  fufficiently  appears  to 

the  court,  that  this   policy,  which  is  a  contraft  in  writing,  has  been  framed 

conti-ary  to  the  intent  and  real  agreement  ?— Secondly,  fuppofmg  it  fo,  whether 

this  is  fuch  a  cafe,  under  the  clrcumftanCes  of  it,  and  nature   of  the  trade,  as 

that  the  court  ought  to  interpofe   and  relieve  ? — as  to  the  firft,  it  is  certain, 

that  to  come  at  that,  there  ought  to  be  the  ftrongeft  proof  poffible  ;    for  the 

agreement  is  twice  reduced  into  writing  in  the   fame  words,  and  muft  have . 

the  fame  conftruftion  ;  and  yet  the  plaintiff  feeks,  'contrary  to  both  ihefe,  to 

vary  them  ;    and  that  in  a  cafe  where  the  witnefl'es  on  the  part  of  the  plaintiff 

varv  from  each  other :  the  fingle  depofition,  upon  which  it  depends  is  very 

uncertain ;    and    imports,     that    they   relied    on    the    plaintiff's    warranty ; 

leaving    the    tranfaftion,    either   precedent    or    fubfequent,    relating  to   the 

manner  of  making  her  an  Offend  ffiip,  to  himfelf: — then  as  to  the  circum- 

ffances,  during  the  whole  voyage,  flie  certainly  was  to  be  an  Oflend  (hip : 

and  if  the    intent  of  the  parties   was,  as  the  plaintiff  fays,   there  fliould  be 

fome    proof   of  that :   the    witneffes   do   not  fay    it  was  neceffary  the  ffiip 

fhould  go  to  Offend,  but  that  flie  fliould  be  regiffercd :    if  flie  was  not  an 

Offend  Ihip  at  the  failing  from  London,  ffie  might  be  taken  by  an  Englifli 

privateer,  becaufe  the  end  of  her  voyage   was  an   enemy's  port,  and    the 

cuftom-houfe    books     not    conclufive    to    the    captors,   who  may  (hew  that 

die  voyage   was   to  the   Canaries,  notwithftanding  a   different   entry  there  : 

the  plaintiff's  midaking  the  law   of  Offend  will  not  be  a  ground  to  vary   the 

agreement ;    for   if  the   other   fide  knew  of  it,   it  is    nothing  to  dicm,  nor 

turns  the  lofs  on  them  ;   and  there  is  no  colour  that  they  knew  of  it,  or  even 

4  W  that 


366  Mistake. 

that  the  plaintiff  thought  it  was  fo :  but  in  what  cafe,  on  this  uncertain 
proof,  am  I  to  turn  the  lofs  on  the  defendant  ?  in  a  cafe  wherein  they  would 
have  no  confiderationj  as  the  premium  might  be  recovered  againll  them  ; 
for  it  is  laid  down,  that  "  if  the  fhip  was  never  brought  within  the  terms  of 
the  infurance,  fo  that  the  infuref  never  runs  any  rifque,  the  previium  muft  be 
returned  in  an  aftion  by  the  aflured  :"  in  which  cafe  the  allured  never  would 
have  brought  a  bill  to  reftify,  but  would  have  taken  it  on  the  foot  of  the 
policy, — Another  point  has  been  argued,  which  I  will  fpeak  to,  although 
I  fliall  not  go  on  it  in  my  determination  :  it  is  certainly  a  general  rule,  that 
a  plaintiff  muft  come  into  equity  with  clean  hands ;  and  feveral  cafes  at 
common  law  and  in  equity  have  gone  upon  this,  that  "  if  the  eontraft  relates 
to  an  illicit  fubjeft,  the  court  will  not  fo  encourage  the  aftion  as  to  give  a 
remedy : '  therefore  on  an  a6lion  to  recover  back  money  taken  by  way  of 
bribe  to  a  cuftom-houfe  ofhcer,  or  on  a  corrupt  agreement,  the  court  fays, 
it  will  not  lie,  as  the  plaintiff  was  a  party  thereto:  nor  is  it  any  anfwer,  that 
the  defendant  knew  of  this  illegality  ;  for  that  anfwer  ^\'ould  ferve  in  all  thefe 
cafes  ;  and  therefore  the  court  will  fland  indifferent :  but  one  exception 
occurs  in  thefe  cafes,  and  in  which  equity  differs  from  the  common  law ;  for 
generally  the  rule  is  the  fame,  only  equity  adheres  a  little  ftrifter  to  it ;  and 
that  is,  the  cafe  of  ufury,  in  which  equity  fuffers  the  party  to  the  illicit 
contraft  to  have  relief:  but  that  depends  on  a  diflinft  reafon  ;  that  whoever 
brings  a  bill  in  the  cafe  of  ufury,  muft  fubmit  to  pay  principal  and  intereft 
due,  on  which  the  court  lays  hold  and  will  relieve  ;  with  this  further  reafon, 
this  court  confiders  ufurious  contrafts  in  fomewhat  a  different  light  from 
what  the  law  does ;  which  confiders  them  upon  the  foot  of  the  flatutes  :  but 
this  court  as  a  fraud,  and  advantage  taken  on  neceffitous  perfons : — now  to 
apply  this ;  I  am  not  fatisfied  with  the  anfwer  given  to  the  objeftion  of  it's 
being  illicit,  arifing  from  the  cafe  of  the  South-Sea  Company,  for  that  was 
not  a  trading  contrary  to  the  law  of  this  country,  but  contrary  to  the 
agreement  with  the  company  ;  which  is  different  from  a  contract  contrary  to 
the  general  law  of  this  country,  whether  ftatute,  common,  or  maritime  law : 
fo,  o^  Sir  Robert  Nightingales  cafe  ;  which  was  but  a  plea  in  the  Exchequer, 
and  but  the  private  right  of  the  company,  being  contrary  only  to  their  ftatutes, 
not  to  the  general  law  of  the  land  ;  for  in  fuch  cafes  no  remedy  could  be  in 
law  or  equity  :  "  no  determination  has  been,  that  insurance  on  enemies  fhips 
during  the  war  is  unlawful :  it  might  be  going  too  far  to  fay,  all  trading  with 
enemies  is  unlawful ;  for  that  general  doctrine  would  go  a  great  way,  even 
where  only  Englifh  goods  are  exported,  and  none  of  the  enemies  imported, 
which  may  be  very  beneficial:  I  do  not  go  on  a  foundation  of  that  kind  :  and 
there  have  been  feveral  infurances  of  this  fort  during  the  xoar,  which  a  determi- 
nation upon  that  point  might  hurt ; '  to  fay  remedy  could  be  in  law  or  equity, 
it  muft  be  very  clearly  fo,  and  not  by  any  ftrain  :  as  to  the  cafe  of  "  infurance 
on  -coool  tranfported  to  France,  I  never  doubted  but  that  was  an  unlawful 
contract ;"  and  therefore  if  a  cafe  came  before  me,  when  I  was  chief  juftice, 
both  fides  knowing  it,  and  a  feizure  for  that  by  the  cuftom-houfe  officer, 
I  fhould  have  held  it  an  illicit  infurance  and  contraft : — but  upon  the  firft 
point  there   is   no  evidence  to  vary  the  contraft,  from  the  written  words ;  || 

therefore 


I 


MUTINY.  367 

therefore  the  bill  mufl  be  difmiffed,  but  without  cofts ;  for  it  appears  to  be 
a  lofs  by  a  capture  not  within  the  zJitcnt  of  the  parties. — 1  Vcfcys  Cafes,  31.—" 
Nov.  14.  1749. — Henkle  v.  Roy.  Exch.  AJf,  Comp. 

3.  See  Prelim.  Life.  28,  83.  Alteration  of  Policy  Voyage  or  Rifque, 
Comviencement,  Concealment,  Enemy,  Illegality,  Intendment,  Mafqued  Ship  or 
Property,  Neutral  Ship  or  Property,  Parol  Agreement,  Payment,  Property, 
Wool. 

MOORING. 

1.  /^ASE. — The  fliip  Succefs  was  infured  at  and  from  Leghorn  to  the 
^^  port  of  London,  and  "  till  there  moored  24  hours  in  good  fafety  :" 
fhe  arrived  the  8th  of  July  at  Frelh  Wharf,  and  moored,  but  was  the  fame 
day  ferved  with  an  order  to  go  back  to  the  Hope  to  perform  a  fourteen  days 
quarantine :  the  men  upon  this  deferted  her,  and  on  the  12th  the  captain 
applied  to  be  excufed  going  back,  which  petition  was  adjourned  to  the  28th, 
when  the  regency  ordered  her  back ;  and  on  the  30th  fhe  went  back, 
performed  the  quarantine,  and  then  fent  up  for  orders  to  air  the  goods :  but 
before  flie  returned  the  fhip  was  burnt  on  the  23d  of  Auguft:  and  now  the 

queftion  was,  whether  the  infurer  was  liable  ? For  the  defendant  it  was 

infilled,  that  the  fliip  arriving  and  being  moored  on  the  8th  of  July,  and 
remaining  fo  till  the  30th,  here  was  a  performance  of  what  he  had  undertaken, 
and  his  rifque  ought  not  to  be  extended  to  fo  long  a  time  as  the  8th  of  July, 
and  the  burning,  the  23d  of  Auguft. — But  it  was  ruled  that  though  the  fliip 
was  fo  long  at  her  moorings,  yet  flie  could  not  be  faid  to  be  there  in  good 
fafety ;  which  mull  mean  the  opportunity  of  unloading  and  difcharging ; 
whereas  here  fhe  was  arrejled  within  the  24  hours;  and  the  hands  being 
Jeferted,  and  the  regency  taking  time  to  confider  the  petition,  there  was  no 
default  in  the  mafter  or  owners  ;  and  it  was  proved  that  till  the  fourteen 
days  were  expired,  there  could  be  no  application  to  air  the  goods  ;  wherefore 
the  jury  found  for  the  plaintiff. — Stran.  1243.   19  Geo.  2. — Waplesv.  Eames, 

2.     See  Cutting,   End  of  Voyage  or  Rifque,  Intendment,  Quarantine. 

MOROCCO. 

1.  T  F   the  Englifli  men  of  war,  privateers,  or  letters  of  marque  fliips,  fhall 

-■-  tdkt  prizes  from  any  nation  with  whom  they  fliall  be  at  war,  they  fhall 

have   liberty   to   bring  and   difpofe   of  the  fame   in  any  of  the  emperor's 

dominions,  without  any  duty  or  charge  whatfoever. — Treaty  zcith  M or oc.  1751. 

2.     See  Algiers,  Barbary,  Prize,   Treaty. 

MUTINY. 

See  Deviation,  Privateer. 

^^  NAME. 


■vj  OJ    . 


N. 


1 


NAME. 

■1'  r  I  "iHE  infured's  name  ought  to  be  inferted  in  every  policy  of  infurance, 
I  at  the  time  of  underwriting  it,  or  a  declaration  for  whofe  account 
the  infurance  is  made,  or  to  whom  the  goods  are  configned, 
and  by  whom  fhipped ;  fince  it  is  equally  proper  that  the  infurer  fhould  know 
who  they  are  he  contrafts  with,  as  that  the  infured  fhould  know  his  infurers  : 
— this  circumftance  is  required  in  policies  on  lives,  &c.  by  flat.  14  Geo.  3* 
otherwife  the  infurance  is  void  : — ^but  the  cuftom  of  leaving  a  blank  for  the 
infured's  name  in  thofe  on  fhips  and  merchandifes,  is  an  opening  to  various 
deceits  and  impofitions,  which  are  thereby  often  praftifed. 

2.  See  Alteration  of  Policy  Voyage  or  Kifque,  AJJignmcnt,  Blank,  Cancelling^ 
Concealment,  Factor,  Fire,  Fraud,  Injured,  Lives,  Mtjlake,  Order,  Policy, 
Ship  or  Ships,   Tnijh  &  Tncftee. 


NAVIGATION    AND   NAVIGATION- ACT. 

J.   T>Y  Stat.  \2Car.  2.  c.  18.  f.  1. — No  goods  fhall  be  imported  into,  or 
J^  exported  out  of,  any  plantations  or  territories,  to  his  majefty  belong- 
ing, in  Afia,  Africa,  or  America,  but  in  fuch  fhips  as  belong  only  to  the 
people  of  England  or  Ireland,  Wales  or  Berwick,  or  are  of  the  built  of,  and 
belonging  to,   any  of  the  faid  territories,  as  the  proprietors  thereof,   and 
whereof  the  mafler  and  .three-fourths  of  the  mariners  are  Englidi  (viz.  his 
majefly's  fubje6ls)  under  forfeiture  of  all  the  goods  imported  or  exported  in 
anv  other  fhip,  as  alfo  of  the  fhip. — S.  3.  No  goods  of  the  produftion  or 
manufafture  of  Africa,  Afia,  or  America,  fhall  be  imported  into  England, 
Ireland,  or  Wales,  Guernfey,  Jerfey,  or  Berwick,  in  any  fliips  but  fuch  as 
belong  only  to  the  people  of  England,  Ireland,  Wales,  or  Berwick,  or  of  the 
plantations  to  his  majefty  belonging,  as  the  proprietors  thereof,  and  whereof 
the  mafter  and  three-fourths  of  the  mariners  are  Englifli,  under  the  penalty 
of  forfeiture  of  all  fuch  goods,  and  of  the  fhip. — S.  4.  No  goods  of  foreign 
produftion    or   manufacture,    and   brought  into    England,   Ireland,   Wales. 
Guernfey,  Jerfey,  or  Berwick,  in  Englifli-built  fhippen,    or  other  fhippen 

belonging 


NAVIGATION  AND   NAVIGATION   ACT.       369 

belonging  to  the  faid  places,  and  navigated  by  Englifli  mariners,  fhall  be 
brought  from  any  other  places  but  thofe   of  the  growth  or  manufafture,  or 
from  thofe  ports  where  the  goods  are  ufually  firft  fhipped   for  tranfportation, 
under  the  penalty  of  forfeiture  of  all  fuch  goods  as  fliall  be  imported   from 
any  other  place,  as  alfo  of  the  fliip. — S.  6.  It  fhall  not  be  lawful  to  load  in 
any  fliips,  whereof  any  flrangers  (unlefs  fuch  as  be  denifons  or  naturalized) 
be  part  owners  or  mailers,  and  whereof  three-fourths  of  the   mai-iners,  at 
leaft,  be  not  Englifli,  any  goods  or  things  from  one  port  or  creek  of  England, 
Ireland,  Wales,  Guernfey,  Jerfey,  or  Berwick,  to  another  port  or  creek  of 
the  fame,  under  penalty  to  forfeit  all  fuch  goods,  together  with  the  fliip. — 
[See  Foreigyi  Ships.']— S.  7.  Where  any  privilege  is  given  in  the  book  of  rates, 
to  goods  imported  or  exported  in  Englilh-built  ihips,   viz.  built  in  England, 
Ireland,   Wales,    Guernfey,  Jerfey,  or  Berwick,  or  in  any  of  the  dominions 
to  his  majefly  in  Africa,  Afia,  or  America  belonging,  it   is  to  be  underflood 
that  the  mailer  and  three-fourths  of  the  mariners  be  alfo  Englilh  ;   and  where 
it  is  required  that  the  mailer  and  three-fourths   of  the  mariners  be  Englifli, 
the  meaning  thereof  is,  that  they  be  fuch  during  the  whole  voyage,  unlefs  in 
cafe  of  ficknefs,  death,  or  being  taken  prifoners,  to  be  proved  by  the  oath  of 
the    mailer. — S.  8.   No  goods   of  Mufcovy,  or  Rufiia,  no  mails,  timber,  or 
boards,  fait,  pitch,  tar,  rohn,  hemp  or  flax,  raifms,  figs,  prunes,  olive-oils,  no 
corn  or  grain,   fugar,   pot-aflies,  wines,  vinegar,  or  brandy,  fliall  be  imported 
into  England,  Ireland,  Wales,  or  Berwick,  in  any  fhips   but  fuch  as  belong  to 
the  people  thereof,  and  whereof  the  mailer  and  three-fourths  of  the  mariners 
are  Englifli ;  and  no  currants  nor  commodities  of  the  growth  or  manufafture 
of  any  of  the  countries  to  the  Othoman  or  Turkifli  empire  belonging,  fhall  be 
imported  in  any  fliip  but  of  Englifli  built,  and  navigated  as  aforefaid,  except 
fliips  of  the  built  of  that  country   of  which   the  goods  are  the  produ6lion  or 
manufafture,  or  of  fuch  port  where  the  goods   can  only  be,  or  moll  ufually 
are,  firft  fliipped  for  tranfportation,  and  whereof  the  mailer  and  three-fourths 
of  the  mariners  are  of  the  faid  country,  under  the  forfeiture  of  Ihip  and 
goods. — S.  13.   Not  to  reftrain  the  importing  of  any  Eaft-India  commodities 
in  Englifli-built  fliippen,  whereof  the  mailer  and  three -fourths  of  the  mariners 
are  Englifli,  from  the  ufual  places  of  lading  them  in  thofe  feas  fouthv/ard  and 
eaflward  of  Cabo  bona  fperanza. — S.  16.  Not  to  extend  to  goods  of  Scotland 

in  Scotch-built  lliips,  nor  to  feal-oil  of  RuflTia. (For  the  reft  of  this  aft, 

and  other  fubfequcnt  navigation  afts,  fee  Colony,  and  other  titles   referred 
to  below). 

2.  Remark. — To  the  above-mentioned  aft  (the  idea  of  which  was 
originally  formed  by  Oliver  Cromwell  in  1651)  is  owing  the  prodigious 
increafe  of  our  commerce  and  maritime  power. 

3.  See  Admiralty  &  Adnm- ally -Court,  Colony,  Enemy,  FiJIieries,  Freedom 
of  Navigation,  Foreign  Oroner,  Foreign  Ships,  Ireland,  Lazo  of  Nations, 
Maritime  Court,  Maritime  Lazv,  Mafqucd  Slap  or  Property,  Majler,  Neutral 
Ship  or  Properly,  Scotland,  Sea-Laxos,  Seamen,  War. 

4X  NECESSITY. 


370 


NEGLIGENCE. 


NECESSITY. 


SEE  Abandonment,  Accident,  Bottomry,  Cutting,  Deviation,  Dijlrefs,  End  of 
Voyage  or  Rifque,  Fire,  General  Average,  Greenland,  Hypothecation,  Jet/on, 
Landing,  Majier,  Negligence,  Privateer,  Ran/om,  Running  Foul,  Shipioreck, 
Stranding,  Ufage,  Voyage,  War, 


NEGLIGENCE. 

1.  TN  all  cafes  where  a  damage  accrues  to  another  by  the  negligence,  igno- 
•*-  ranee,  or  mifbehaviour  of  a  perfon  in  the  duty  of  his  trade  or  calling, 
an  a6lion  on  the  cafe  will  lie. — Bullers  Law  at  Niji-  Prius. 

2.  Case. — Aftion  upon  the  cafe  againft  a  fliip-mafter,  or  keelman,  who  car- 
ries goods  for  hire  from  port  to  port ;  the  plaintiff  does  not  declare  againft  him 
as  a  common  carrier  upon  the  cuftom  of  the  realm,  but  the  declaration  is,  that 
the  defendant  at  the  fpecial  inftance  of  the  plaintiff  undertook  to  carry  certain 
goods,  confining  of  knives  and  other  hard-ware,  fafe  from  fuch  a  port  to  fuch 
a  port,  and  that  in  confideration  thereof  the  plaintiff  undertook  and  promifed 
to  pay  him  fo  much  money  :  that  the  goods  were  delivered  to  the  defendant 
on  board  his  keel,  and  that  the  goods  were  kept  fo  negligently  by  him  that 
they  were  fpoiled  : — upon  the  general  iffue  non  affumpfit,  this  caufe  came  on 
to  be  tried  before  Juftice  Burnett ;  and  the  plaintiff  proved  the  goods  were 
all  in  good  order  and  clean  when  they  were  delivered  on  board,  and  that 
they  were  damaged  by  water  and  rujted  to  the  amount  of  24I.  this  was  all  the 

plaintiff's  evidence. For  the  defendant,  it  was  infilled  at  the  trial,  that  as 

the  plaintiff  had  proved  no  particular  negligence  in  the  defendant,  that  he 
might  be  permitted  to  give  in  evidence  that  he  had  taken  all  poffible  care  of 
tlie  goods  ;  that  the  rats  made  a  leak  in  the  keel,  or  hoy,  whereby  the  goods 
were  fpoiled  by  the  water  coming  in  ;  that  they  pumped  and  did  all  they 
could  to  prevent  the  goods  being  damaged ;  which  evidence  the  judge 
permitted  to  be  given,  and  thereupon  left  it  to  the  jury,   who  found  a  verdift 

for  the  defendant. It  was  now  moved  for  anew  trial  by  Mr.  Clayton   and 

Mr.  Ford,  for  the  plaintiff,  who  infilled  that  the  evidence  given  for  the 
defendant  ought  not  to  have  been  received. — Fofler,  juftice,  reported,  that 
Burnett,  juftice,  was  doubtful  whether  the  evidence  given  by  the  defendant 
was  admilfible  or  not,  and  fubmits  that  to  the  court ;  but  if  it  was  admiffible 
he  is  very  well  fatisfied  with  the  verdi6l. — Sir  Thomas  Bootle,  and  Serjeant 
Bootle,  for  the  defendant,  infifted  that  this  declaration  not  being  upon  the 
cuftom  of  the  realm,  but  upon  a  particular  contract,  and  that  the  breach 
affigned  being,  that  by  the  negligence  of  the  defendant  the  goods  were 
fpoiled,  that  therefore  negligence  is  the  very  gift  of  this  a6lion,  and  the 
defendant  has  proved  there  was  no  negligence;  indeed  "  if  the  declaration 
had  been,  that  the  defendant  promifed  to  keep  fafely  the  goods  as  well  as  to 

carry 


NEGLIGENCE.  371 

carry   them  fafely,   he  mud  have   kept  them  fafely  at   all  events." Lee 

chiefjudice,  faid,  this  is  a  nice  diftinftion  indeed ;  I  am  of  opinion  that 
the  evidence  given  for  the  defendant  was  not  admifhble  ;  "  the  declaration 
is,  that  the  defendant  undertook  for  hire  to  carry  and  deliver  the  goods  fafe, 
and  the  breach  affigned  is  that  they  were  damaged  by  negligence  ;  this  is 
no  more  than  what  the  law  fays ;  every  thing  is  a  negligence  in  a  carrier 
or  hoyman,  that  the  law  does  not  excufe,  and  he  is  anfwerable  for  goods  the 
inllant  he  receives  them  into  his  cuftody,  and  in  all  events,  except  they  happen 
to  be  damaged  by  the  atl  of  God,  or  the  king's  enemies;  and  a  promife  to  carry 
fafely,  is  a  promife  to  keep  fafely."— Wright,  juflice,  of  the  fame  opinion. 
— Denifon,  juflice  ;  the  law  is  very  clear  in  this  cafe  for  the  plaintiff;  the 
declaration  upon  the  cuftom  of  the  realm  is  the  fame  in  effeft  with  the  prefent 
declaration;  in  the  old  forms  it  is,  that  the  de{enAa.r\X.  fufcepit,  &c.  which 
ftiews  it  is  ex  contraBu  ;  in  the  prefent  cafe  the  promife  to  carry  fafely  need 
not  be  proved,  the  law  raifes  it ;  the  breach  is  very  right,  that  he  did  not 
deliver  them  fafely,  but  fo  negligently  kept  them  that  they  were  fpoiled. — 
Fofter  of  the  fame  opinion  ;  and  a  new  trial  was  granted. — 1  Wilfon  281. 
B.  R.  Mich.    1750. — Dale  v.  HalL 

3.  Case. — This  was  an  action,  before  Lee,  chief  juflice,  againfl  a  mafter 
of  a  fliip,  v.ho  undertook  to  carry  goods  from  London  to  Amfterdam  ;  the 
breach  affigned  was,  that  a  puncheon  of  rum  was  ftaved  and  loft  to  the 
plaintiff's  damage ;  this  was  proved  to  be  done  by  the  defendant's  fervants, 
\\\  letting  it  down  into  the  hold  of  the  fhip  ;  and  though  the  defendant 
proved  it  was  endeavoured  to  be  let  down  into  the  hold  with  all  poffible  care, 
yet  by  accident  it  was  ftaved  : — notwithftanding  this,  the  jury  gave  a  verdift 

for  the  plaintiff"  agreeable  to  the  directions   of  the   chief  juftice. N.  B. 

This  cafe  was  cited  by  Mr.  Clayton  in  the  cafe  above. — 1  Wilfon  281.  B.  R. 
Hil.  1750. — A'^  GoJf\.  Clinkard. 

4.  Case. — In  an  aftion  on  the  cafe  brought  againft  the  defendants  as 
poftmafters-general,  Holt,  chief  juftice,  cited  a  record  out  of  Molloy,  24  Ed. 
3  n.  45,  that  the  mafter  of  a  fliip  may  reimburfe  himfelf  out  of  the  wages  of 
the  mariners,  if  a  lofs  happen  by  their  negligence. — 1  Rayvi.  650.  Eaft. 
13  W.  3. — Lane  v.  Sir  Robert  Cotton  &  Sir  Thomas  Frankland. 

5.  Per  curiam:  every  negleft  of  the  mafter  is  not  within  this  policy; 
and  if  he  had  run  away  with  the  fliip,  or  embezzled  the  goods,  the  merchant 
may  have  his  aftion  againft  him :  but  yet,  he  may  provide  againft  him  in 
another  manner,  viz.  by  infuring  his  fhip  and  goods  to  fecure  himfelf  againft 
all  afts  of  barratry ;  for  it  is  reafonable  that  merchants,  who  venture  a 
large  fhare  of  their  ftocks,  fhould  fecure  themfelves  in  what  manner  they 
think  proper  againft  the  barratry  of  the  mafter,  and  all  other  frauds.—- 
'•'  Barratry  is  a  word  of  more  extenfive  fignification  than  only  to  include 
the  mafter's  running  away  with  the  fliip :  it  may  well  include  the  lofs  of  the 
(hip  by  his  fraud  or  negligence." — 8  Mod.  Rep.  230.     Eaft.     10  Geo.  1. — ■ 


Knight  v.  Cambridge. 


6.    See 


372 


NEUTRAL     SHIP    OR    PROPERTY. 


6.1  See  Abandonvient,  Accident,  Amjlcrdam,  Barratry,  Claim,  Copen- 
hagen, Cordage,  Damage,  Declaration,  Deviation,  Document,  Evidence, 
Irijicfficiency,  Infured,  Mariner,  Mcjler,  Pilot,  Salt,  Store  age,  Thcjt. 

NEUTRAL     SHIP     OR     PROPERTY. 

1.  A  SHIP  captured  from  the  French,  carried  into  Jerfey,  and  there 
-^~J^  properly  condemned,  was  bought  in  the  names  and  for  the 
account  of  Burghers  in  Holland  :  having  taken  in  a  cargo  of  prize  goods 
(captured  alfo  from  the  French  and  properly  condemned)  the  fiiip  failed  from 
Jerfey,  bound  for  Rotterdam,  having  on  board  a  Duch  captain,  crew,  fea- 
brief,  &c.  :  in  the  voyage  the  fliip  was  taken,  carried  into  France,  and  there 
both  Ihip  and  cargo  were  condemned  to  the  captors. — Previous  to  her  failing, 
a  policy  of  infurance  was  eff"e6ted  in  London,  in  which  policy  the  (hip  is 
"  warranted  a  Dutch  Jliip,  and  the  infurance  declared  to  be  on  goods,  Dutch 

property;    prize   goods  warranted   free    of  particular   average." Query; 

was  the  fliip  (having  never  been  in  Holland)  legally  navigated  as  a  Dutch 
fhip  ?   and  if  not,  does   not  the  warranty   in  the   policy  of  her  being  fuch, 
difcharge  the  underwriters,  notwithftanding  the  infurance  is  on  goods,  and 
thefe   goods    mentioned    to    be    prize  goods?— — Dodor   William   Wynnes 
Opinion : — "  I  do  not  think  that  this  was  a  legal  Dutch  fliip  ;    the  purchafe 
from  the  Englifh  captor  at  Jerfey  not  conveying  fuch  a  property  to  the  Dutch 
purchafcr,   as    would   fecure   her   from  capture    by   the    French,    and    con- 
demnation in  the  French   court  of  admiralty  : — and  the  condemnation  of 
the  goods  having  been  occafioned  by  their  being  laden  on  board  a  (hip  which 
was  not  entitled  in  France  to  the  privilege  of  a  Dutch  fliip,    though  warranted 
in   the  policy   to  be  fuch,  I  think  that   this  warranty    in   the    policy  does 
difcharge  the  infurers  of  the  goods,  notwithftanding  that  they  were  declared 
to  be  prize  goods,  as  I  apprehend  that  prize  goods  on  board  a  legal  Dutch 
fliip  would  have  been  fecure  and  free.'' — Doctors'  Commons,   the   19th  of 
June  1780. 

2.  Per  Holt,  chief  juftice,  if  the  goods  were  aflured  as  the  goods  of  an 
Hamburgher,  who  was  an  ally,  and  the  goods  were  the  goods  of  a  French- 
man, who  was  an  enemy  ;  this  is  a  fraud,  and  the  afllirance  is  not  good. — ■ 
Skin.  327.  Mich.  4  W.  and  M.     B.  R. — Anon. 

3.  Case. — This  was  a  fpecial  cafe  referved  at  nifi  prius  at  GuildhaU, 
before  Lord  Mansfield,  for  the  opinion  of  the  court : — it  was  an  aftion  on 
the  cafe  brought  for  the  recovery  of  a  total  lofs  on  a  policy  of  infurance  made 
on  goods  and  mcrchandifes  on  board  the  fhip  Bona  Fortuna,  at  and  from 
North-Bergen  to  any  ports  or  places  whatfoever,  until  her  fafe  arrival  in 
London :  it  was  underwritten  thus,  "  warranted  neutral  flbip  and  property :" 
it  was  admitted  that  the  plaintiff  had  intereft. — The  fliip,  with  the  goods, 
proceeding  on  her  \'oyage,  was  -wrecked,   and  thereby  wholly  loft :   and  it 

waj 


I 


I 


NEWFOUNDLAND.  373 

was  exprefsly  ftated,  "  that  the  (hip  or  veflel  called  ihe  Bona  Fortuna,  at 
and  before  the  time  (lie  was  loft,  was  not  neutral  property,  as  warranted 
by  the  faid  policy:"    the  queftion  therefore  was,  "  whether  the  plaintiffs  can, 

under   the    circumftances    of  this    cafe,    recover    in  this    a6lion  ?" Lord 

Mansfield  faid,  it  was  too  plain  to  argue  this  was  no  contraft :  for  the  mm 
infured  neutral  property,  and  this  was  not  neutral  property :  therefore  we 
niufl  give  judgment  for  the  defendant. — 3  Burr.  1419.  Trin.  3  Geo.  3. — ■ 
Woclmer  v.  i\.u  Imin. 

4.  Remarks. — It  has  often  been  a  decided  point  in  former  wars,  that 
by  virtue  of  the  treaties  between  England  and  Holland  of  165/  and  1674, 
the  fhips  of  either  nation  fhould  and  did  give  freedom  of  conveyance  to 
enemies'  property  (warlike  ftores  only  excepted)  but  on  the  other  hand, 
that  whatever  property  of  either  of  thofe  powers  fhould  be  met  with  on  board 
an  enemy's  fhip,  was  to  be  deemed  lawful  prize  and  confifcated. — This 
is  fomewhat  different  from  the  general  law  of  nations^  as  well  as  from 
other  treaties  of  commerce  concluded  by  England  with  Denmark  and  Swed.^n, 
&c.  whofe    fliips  in  time  of  war  are  only  permitted  to   navigate  free  with 

neutral  propert)-. It  is  however   obfervable   that,    even  in  the  ffate  of  a 

declared  war  between  nation  and  nation,  the  afcertainment  of  right  to  prizes, 
in  the  cafe  of  neutral  fhips  aftually,  or  prefumably,  covering  hoftile  pro- 
perty, is  of  fo  intricate  and  difficult  a  nature,  that  in  the  laft  century  Grotius 
complained  of  the  unfetti  dnefs  of  i  by  the  known  iaw  of  nations : — and 
fince  him,  the  moff  renowned  civilians  have  treated  of  this  point  with  the  mofl 
fcrupulous  diffidence  :  Heineccius,  learnedly,  Hubner,  more  praftically,  have 
indeed  thrown  fome  ufeful  light  upon  this  fubject ; — but  ih  diliicuhy  of 
deciding  on  the  right  of  condemnation  of  fuch  prizes,  captured  by  letters  of 
marque    and  privateers  in  a  ftate  of  hoftilities   only,  by    way  of  reprifal  on 

the  enemy,  becomes  flill  greater. With  refpeft  to  infurances  on  neutral 

fhips  or  property,  even  when  warranted  and  proved  to  be  fuch,  the  rifque 
is  great ;  for  the  charges  of  obtaining  reftitution,  after  feizure  and  detention 
generally  run  very  high,  efpecially  when  the  cargoes  belong  to  40,  50,  or 
perhaps  more,  different  proprietors,  each  of  whom  muft  make  out  proof  of 
his  property;  for  which  he  who  has  but  one  bale  muft  pay  the  fame 
expences  as  if  he  had  an  hundred  : — not  to  mention  the  danger  of  deception, 
by  the  property  being  merely  mafqued. 

5.  See  Capture,  Claim,  Condemnation,  Conjlfcation,  Enemy,  Freedom  of 
Navigation,  Law  of  Nations,  Mafgucd  Ship  or  Property,  Miftake,  Paffport, 
Prize,  Property,   Reprifal,  Treaty,   War, 

NEWFOUNDLAND. 

1.   /^  A  S  E. — The  fuit  here  was  for  feamen's   wages,  upon  the  arrival  of 

V-^    the    fhip  at  Guinea. — Powell,  juftice,  faid,    he   remembered  a  cafe 

of  the  like  nature,   where  a  fuit  was  commenced  in  the  court  of  admiralty, 

4  Y  by 


374  NEWFOUNDLAND. 

by  failors  for  their  wages,  upon  the  arrival  of  the  fliip  at  Newfoundland; 
and  though  the  merchants  all  held  k  no  port  of  delivery,  yet  the  court  of 
admiralty  held  the  contrary,  and  fo  did  the  court  of  common  pleas,  upon  a 
motion  for  a  prohibition. —  i  Rayni.  1248. — Brown  v.  Ben7i  &  al. 

2.  By  Stat.  15  Geo.  3.  c.  31.  f.  1. — From  the  ill  of  January'  1776,  the 
refpe£live  bounties  herein  after  mentioned  (hall  be  paid  and  allowed  annually, 
for  eleven  years,  for  a  certain  number  of  fliips  or  veflels  employed  in  the 
Briiifli   fifhery   on   tlie  banks    of  Newfoundland,   under  the  limitations  and 

reRrifclions  expreffed  in  this  aft :  viz. S.  2.  To  be  Britifh  built,  and  owned 

by  his  majcfty's  fubjefts,  of  the  burthen  of  50  tons  or  upwards,  and 
navigated  with  not  lefs  than  fifteen  men  each,  three-fourths  of  whom,  befides 
the  mafler,  fliall  be  his  majefty's  fubjefts ;  and  in  other  refpefts  qualified, 
&c.  as  by  an  aft  of  10  and  1 1  Will.  3.  and  fliall  be  fitted  and  cleared  out  from 
fome  port  in  Great-Britain  after  the  ifl  of  January  1776,  in  each  year, 
and  fiiall  proceed  to  the  banks  of  Newfoundland :  and  having  catched  a 
cargo  of  filh  upon  thofe  banks,  confifiing  of  not  lefs  than  10,000  fifh,  (hall 
land  the  fame  at  one  of  the  ports  on  the  fouthern  or  eaflcrn  fide  of  the 
ifland  of  Newfoundland,  between  Cape  Ray  and  Cape  de  Grat,  on  or  before 
the  15th  of  July  in  each  year;  and  (hall  make  one  more  trip  at  leaft  lo  the 
faid  banks,  and  return  with  another  cargo  of  fifii  catched  there  to  the  fame 
port ;  in  which  cafe,  the  25  veffels  fir/i  arriving  at  the  faid  ifland  of 
Newfoundland  from  the  banks  thereof,  with  a  cargo  of  fiflt  catched  there, 
confiding  of  10.000  fifh  at  the  leafl:,  and  after  landing  the  fame  at  one  of  the 
ports  within  the  limits  before  mentioned  in  Newfoundland,  fhall  proceed 
ap-ain  to  the  faid  banks,  and  return  to  the  faid  ifland  with  another  carra  oi 
filh,  fhall  be  entitled  to  fojiy  pounds  each ;  and  100  velfels  which  fhall  fo 
arrive  the  next  m  order  of  time,  on  or  before  the  15th  of  July  in  each  year, 
at  the  faid  ifland,  with  a  like  cargo,  and  fliall  proceed  again  to  the  faid  banks, 
and  return  from  thence  in  the  manner  herein  before  mentioned,  fliall  be 
entitled  to  txvenfy  pounds  each;  and  100  other  veffels  which  fhall  fo  arrive 
the  ne.xtm  order  of  time,  on  or  before  the  15th  of  July  in  each  year,   &c.  to 

ten  pounds  each. S,  3.  And  in  order  to  induce  his  majefty's   fubjefts  in 

Great-Britain  and  Ireland,  and  the  iflands  of  Guernfey,  Jerfey,  and  Man,  to 
carry  on  the  xohale  Jijhery  on  the  coafts  of  Newfoundland,  and  the  feas 
adjacent,  the  feveral  bounties  hereafter  mentioned  fhall  be  allowed  annually, 
for  eleven  years,  for  five  vejfels  employed  in  that  fifliery :  fuch  veflTels  to  be. 
Britifh  built,  &c.  and  navigated  with  three -fourths  Britifli  fubjefts  bcfidti 
the  maftcr,  and  fhall  be  fitted  and  cleared  out  from  fome  port  in  Great- 
Britain  or  Ireland,  &c.  after  the  ift  day  of  January  1776,  and  after  that  day  in 
each  fucceeding  year,  and  fliall  take  and  kill  one  whale  at  leafl  in  the  gulph 
of  St.  Lawrence,  or  on  the  coafts  of  Labrador,  Newfoundland,  or  in  any 
feas  to  the  fouthward  of  the  Greenland  feas  and  Davis's  Streights,  and  fliall 
return  within  the  fame  year  to  fome  port  in  England  with  the  oil  of  fuch 
whale  or  whales  fo  taken  as  aforcfaid,  &c. — fuch  oil  may  be  landed  without 
payment  of  any  duty,  &c.    and  the  receiver-general  of  the  cuftoms  fliall  pay 

for 


NEW        TRIAL.  375 

for  the  vefTel  which  fhall  fo  arrive  in  each  year  with  the  greatefl;  quantity  of 
oil  taken  as  aforefaid,  five  hundred,  pounds ;  for  the  veflel  in  the  fame 
year  with  the  next  greatelt  quantity  oioA  Jour  hundred  pounds  ;  for  the  vefTel 
in  the  fame  year  with  the  next  greatefl  quantity  of  oil  fo  taken  three  hundred 
pounds  ;  for  the  veffel  in  the  fame  year,  with  the  next  greateft  quantity  of  oil 
fo  taken  two  hundred  pounds ;  and  for  the  vefiel  in  the  fame  year,  with  the 
next  greatefl  quantity  of  oil  fo  taken  one  hundred  pounds ;  the  fa  id  oil  fo 
to  be  imported  by  each  of  the  faid  vefTels  being  the  produce  of  one  whale 
at  the  leaft :  and  the  faid  bounties  fhall  be  paid  within  two  months  after  the 
expiration  of  each  year  in  which  fuch  veffel  fliall  arrive. 

3.     SzTL  Africa,  Bounty,  Commencement  of  Voyage  or  Rifque,  End  of  Voyage 
or  Rifque,  Fijherics,    Voyage,   Wages. 


NEW         TRIAL. 

1.  T  T  O  L  T,  chief  juflice,  faid;  in  granting  a  new  trial,  we  ought  not 
-^-^  altogether  to  rely  on  the  certificate  of  the  judge  who  tried  the 
caufe,  but  on  the  renfon  of  the  thing ;  and  fomeiimes  I  would  grant  a  new 
trial  againflthe  certificate  of  a  judge,  if  in  my  judgment  and  confcience  the 
matter  deferves  a  re-examination. — 12  Mod.  Rep.  330.    Mich.    11  W.  3. 

2.  If  there  be  evidence  on  both  fides,  and  a  verdift  againfl  the  flrength 
of  evidence  ;  if  fuch  trial  be  not  peremptory,  there  ought  not  to  be  a  new 
trial : — general  caufes  of  new  trials  are  want  of  due  notice  ;  practice  or 
mifdemeanor  in  the  jury,  in  either  party,  or  their  agents  ;  the  abfence  of 
fome   material  witnefs,  which   they  could   not  then   have ;    verditl  againfl 

evidence,  exceffive  damages,    &c. : in  many  cafes,  on  granting  of  a  new 

trial  the  former  verditl  ought  to  fland  as  a  fecurity  ;  for  otherwife  the  party, 
againfl  whojri  it  paffed,  might  fpirit  away  the  evidence,  on  v/hofe  teflimony 
it  was  obtained,  and  fo  without  any  corroboration  of  his  right,  deprive  hira 
of  the  benefit  of  his  verdift.— 12  Mod.  Rep.  439.    Hil.    12  W.  3. 

3.  If  a  new  trial  be  granted  for  irregularity,  there  fliall  be  no  cofls  paid 
for  it ;  but  if  a  defence  be  made,  it  may  help  the  irregularity  :  if  a  new  trial 
be  on  the  merits  of  the  caufe,  there  mufl  be  cofls. — 12  Mod.  Rep.  370.  Eafl. 

12  W.  3. Holt  faid,  that  one  mufl  not  always  conclude,  becaufe  the  court 

grants  a  new  trial,  th.at  they  are  fatisned  that  the  firfl  verdidl  was  bad; 
but   it  is    often  becaufe   the    thing  may  require  a  re-examination ;     and    a 

new   trial   was    granted. — 12    Mod.   Rep.   347.    Eail.   12    W.   3. It   was 

agreed  by  the  court,  that  if  any  judge  of  nifi  prius  allows  or  over-rules 
evidence,  which  he  ought  not  to  have  done,  on  application  to  the  court 
they  will  grant  a  new  trial  ;  for  all  writs  of  nifi  prius  are  under  the  control 
of  the  court  out  of  which  they  ilfuc. — 7  Mod.  Rep.  64.  Mich.  1  Ann. — 
Tomkins  v.  Hill, 

4.    Holt, 


376  N        O        T        I        C        E. 

4.  Holt,  chief  juftice,   faid,  a   new   trial  (liall   be  granted  if  the  judge 
of  nifi   prius   mifdireEl  the  jury,   becaufe  thofe  trials  are   fubjett  to  the  in- 

fpe6lion  of  the  court. — 2  Salk.  649.    Mich.    1  Ann. — Anon. A   new  trial 

ought  not  to  be  granted  for  want  of  evidence,  which  the  party  might  have 
had  at  the  trial,  and  had  not;  but  if  it  be  proved  that  endeavours  had 
been  ufed,  but  prevented  by  fome  unforefeen  accident,  as  fickncfs  of  the 
witnefs,  &c.  it  may  be  a  good  caufe  for  a  new  trial. — 6  Mod.  Rep.  22.  Mich. 
2  Ann. — Warren  v.  Fuzz. 

5.  See  Concealment,  Trial,  Verdifi. 


NOTICE. 

1.     AS  foon  as  the  afTured  receives  intelligence  of  any  accident  or  lofs 
-^— J^  having  happened,  he  ought  to  caufe  notice  thereof  to  be  given  to 
the   infurers,    that   they   may    not     remain    ignorant   of  atiy    thing   which- 
concerns  the  infurance. 

2.  The  infureds  fliall  be  obliged  to  give  notice  to  the  infurers  of  all  the 
intelligence  they  receive  of  misfortunes,  arrefts,  or  damages,  befallen  the  (hips 
or  goods  infured :  on  the  contrary,  the  infured  (hall  be  entitled  to  demand 
of  the   infurers,  in  proportion  to  what  they  have  underwrote,  fuch  fums  of 

*  money  on  account,  for  removing  or  retrieving  of  the  misfortunes,  damages, 
or  arrelts,  as  it  fliall  appear  from  the  circumftances  of  matters  will  be 
neceffary. — Or  din.  of  Amfl. 

3.  The  perfon  infured  having  received  notice  that  the  infured  fliip  or 
goods  are  loft,  ftranded,  arretted,  or  that  any  other  misfortune  has  befallen 
them,  {hall  immediately  notify  the  fame  to  the  admiralty,  or  any  other  naval 
office  in  the  place  ;  and  likewife  without  any  lofs  of  time,  either  himfelf,  or 
by  his  correfpondents  or  agents,  fend  the  like  notice  to  the  infurers,  or  the 
greateft  part  of  them  who  may  be  neareft. — Ordin.  of  Konigjb. 

4.  Whenever  the  aftured  has  any  advice  of  the  fliip's  being  forced  out 
of  courfe;  an  average;  the  captain's  death;  or  of  any  other  misfortune 
happening  to  what  (liall  be  infured,  he  (hall  communicate  it  to  the  afturer,  or 
afl'urers,  viz.  they  being  of  this  town  of  Bilboa,  immediately  on  his  having 
the  faid  advice ;  and  being  diftant,  he  fhall  advife  him  who  by  their  order 
Ihall  have  made  the  infurance,  without  lofing  a  poft,  that  he  may  communicate 
it  to  the  faid  underwriters. — Ordin.  of  Bilb. 

5.  See  Abandonment,  Concealment,  Damage,  Infured,  Intelligence,  Trial, 
Tiujl, 


O  L  E  R  O  N. 


o. 


O        L        E        R        O        N. 

I.  ^  ■  ^  O  fo  much  perfeftion  was  our  naval  reputation  arrived  in  the 
I  twelfth  century,  that  the  code  of  maritime  laws,  which  are  called 
the  laws  of  Oleron,  and  are  received  by  all  nations  in  Europe  as 
the  ground  and  fubflruftion  of  all  their  marine  conflitutions,  was  confefledly 
compiled  by  our  king  Richard  the  firft,  at  the  ifle  of  Oleron  on  the  coaft  of 
France,  then  part  of  the  pofrefhons  of  the  crown  of  England. — i  Black. 
Comm.  417. 

2.  The  Oleron  laws  have   been  frequently  efteemed  the    moll  excellent 
Jea  lazus  in   the    world ;    and  are  flill  preferved  in    the  black  book   of  the 

admiralty. — The  mofl  material  of  them,    and  fuch   as    are    now   generally 
regarded,  are  quoted  and  referred  to  in  divers  parts  of  this  work. 

3.  See   Prelim.   Difc.   67.   Admiralty   &  Admiralty   Court,   Civil,  Law, 
Law,  Sea  Laws,  Rhodian  Laxos,  Wijbuy  Laios. 


ORDER. 

I.  /^  A  S  E. — 'Thefe  were  two  diflincl  aftions  of  covenant  brought  againft 
^^  two  part-owners  of  a  flup,  by  the  hufband  of  it,  who  had  been 
appointed  to  that  office,  by  a  deed  executed  by  all  the  joint-owners :  by 
which  deed  they  empowered  him  generally  to  do  and  aO.  as  hufband  of  the 
fliip,  as  is  cuflomary  ;  and  to  advance  or  lend,  &c. ;  and,  for  all  payments 
made  on  account  of  the  fhip,  to  retain,  &c. — He  infured  the  fliip;  and  now 
brought  thefe  aftions,  for  the  money  paid  by  him  for  infuring  it :  it  was  not 
a  demand  of  their  refpeftive  proportions  ;  but  a  demand  from  each  of  the 
whole  fum  paid  :  both  caufes  flood  together  for  trial :  that  againfl  Backhoufe 
came  on  firft  :  it  was  then  agreed  (and  fo  the  court  now  clearly  held)  that 
"  the  huft)and  had  ho  right  to  infure  for  any  part-owner,  without  his partimlar 
direftion  ;  riorfor  all  the  owners   in  general,  without  their  j^n^rrt/ direflion, 

4  Z  or 


378  ORDER. 

or  fomething  equivalent  to  it."  In  the  prefent  cafe,  it  was  not  pretended  that 
he  had  received  any  exprefs  general  direftion  from  all  the  owners  :  but  it 
was  infifteri,  on  the  part  of  the  plaintift",  that  they  were  informed  of  it,  and" 
acquiefced  in  it:  and  the  plaintiff's  counfel  called  a  witnefs  to  prove  tliis. 
The  defendant's  counfel  denied  it;  and  infilled  that  they  were  never 
informed  of  it  before  the  bringing  of  the  afclion :  and  this  they  offered  to 
prove,  by  calling  Mr.  Fouljlon,  the  defendant  in  the  fecond  caufe.  The 
plaintiff's  counfel  objected  to  his  competency.  The  defendant's  counfel 
anfwered  and  infilled,  that  there  was  no  objeftion  to  his  competency ; 
whatever  there  might  be  to  the  degree  of  credit  to  be  given  to  his  teflimony. 
Lord  Mansfield  held  him  an  incompetent  witnefs,  and  rejefted  his  teflimony 
upon  that  foot.     A  verdicl  was  given  for  the  plaintiff.     And  Mr.  Dunning 

now  moved,   on  behalf  of  the    defendant,    for  a  new  trial. Mr.  Dunning 

as  counfel  for  Mr.  ^^ackhoufe,  the  defendant  in  the  aftion  that  came  on  firfl, 
argued  that  Mr.  Foulflon,  the  defendant  in  the  fecond  atlion  (which  flood 
next  for  trial)  was  a  competent  \vitnefs :  if  there  was  any  objefctiqn  to  him, 
it  could  go  no  further  than  to  his  credibility :  he  has  no  interejl  in  this  caufe 
of  French  againfl  3ackhoufe :  each  of  the  tw:o  defendants  are  feparately  and 
individually  charged :  each  of  the  two  caufes  naiift  fland  upon  it's  o.wn 
evidence  :  pne  of  thefe  two  defendants  would  not  be  liable  tp  contribution 
to  the  other,  upon  a  recovery  againfl  that  other  ;  ojie  on^y  of  tht  part-owners 
had  given  the  plaintiff'  direftions  to  infure  :  but  fuch  a  direftion  given  by  one 
part-owner  only  would  not  bind  the  refl :  the  plaintiff  was  appointed  by  the 
a^rticles,  to  be  hufband  of  the  fliip  :  the  plaintiff's  counfel  called  a  witnefs 
(French's  clerk)  to  prove  "  that  French  told  them  that  he  had  infured; 
^nd  that  they  did  not  objeft  to  it:"  I  denied  the  fa6l ;  and  infilled  that  the 
other  part-owners  were  never  informed  of  it,  till  the  bringing  of  the  a6lion, : 
and  I  had  a  right  to  prove  it  by  this  witnefs,  though  he  was  defendant  in 
the  next  caufe,;  for  he  had  no  interefl  in  this  former  caufe ;  nor  could  the  other 

caufe  be  aff'efted  by  it. Mr.   Wallace,  contraAox  the  plaintiff:    the  <^eed 

gives  the  plaintiff  a  general  power  to  a6t  as  hufband  of  the  fliip  ;  all  the 
owners  are  parties  ;  all  join  in  appointing  him  ;  they  covenant  to  pay  him 
all  that  he  Ihall  lay  out  on  their  account :  Backhoufe  and  Foulfton  were 
both  of  them  owners :  the  infurance  was  made  with  their  privity ;  that 
privily  was  left  to  the  jury,  as  an  evidence  of  antecedent  direftion  given 
by  the  owners  :  in  which  they  all  joined  :  which  is  proved  by  their  fubfequent 
acqiiiefcence :  the  evidence  of  French's  clerk  affeded  Backhoufe  and  Foulfton 
both ;  therefore  Foulfton  could  not  be  evidence  for  Backhoufe  :  the  covenant 
was  joint  and  feveral :  the  aftion  for  the  whole  money  paid  for  infuring  is 
brought  againft  each  feverally  ;  and  the  recovery  muft  be  of  the  zchole  iij 
both  actions ;    and   Foulfton   would  be  liable  to  Backhoufe  for  contribution, 

in  the    former  aftion ;   therefore  he  is  interefted. Mr.   Dunning  replied  : 

that  this  is  not  an  aft  which  a  fliip's  hufband,  can  cu/lomarily  do,  unautho- 
rifed:  it  is  not  an  aft  that  he  can  do,  by  the  direftion  of  only  one  part 
owner,  without  authority  from  the  reft :  the  plaintiff'  called  a  witnefs  to 
prove  that  a  direftion  was   given  by  one  part-owner ;    and   alfo  called  the 

plaintiff's 


ORDER.  379 

plaintiff's  clerk,  to  prove  "  that  both  were  acquainted  with  it,  and  both 
acquiefccd  in  it :"  to  contraditl  the  plaintiff's  clerk,  I  called  this  witnefsj 
who  was  defendant  in  the  next  caufe :  this  is  not  like  the  cafe  of  two 
partners :  Backhoufe  cannot  recover  againll  Foulfton,  for  contribution  of 
his  proportion  on  this  verdi£l :  he  was  not  liable  to  contribution ;  he  had 
no  interell  in  the  aftion :  his  having  an  interefl  in  the  queflion  can  only  be 
an  objedion  to  his  credit ;  'tis  none  to  his  competency  :  the  jury  ought  to 
have  heard  him  :  the  plaintiff^  could  not  have  maintained  this  a6lion,  without 
bringing  it  home  to  all  the  owners :   he  could  take  his  remedy  againft  fuch  of 

them  only,  as  had  authorifed  him  to  do  the  acl. The  court  difcharged  the 

rule  for  a  new  trial ;  being  clearly  of  opinion,  "  that  the  witnefs  was  incom- 
petent."— It    was   agreed,  on    all  hands,  "  that  a  direftion  to   infure,  given 

by   one   part-owner  only,  would  not  bind  the  reft  of  the  part-owners."- 

Lord  Mansfield  : — it  is  moll  ufual,  for  all  the  owners  to  direft  the 
hufband  of  the  Ihip  "  to  a£l  difcretionally  for  them  all ;"  but  this  is  not  his 
office  to  do,  without  particular  direflions :  here,  a  general  direftion  came 
within  the  terms  of  the  deed  :  and  the  hufband  did  infure  for  all  the  owners : 
there  is  a  flrong  probability  *'  that  he  had  a  general  direction :"  indeed,  the 
evidence  brought  to  prove  "  that  there  was  a  general  direftion  given  by  all 
the  ownersj'  was  not,  "  that  they  gave  an  cxprejs  direftion  :"  it  only  proved 
"  that  they  were  told  of  the  infurance,  and  exprelfed  no  objeSlion  to  it :" 
unlcfs  there  was  a  general  direftion,  the  plaintiff  could  not  recover  in  this 
action :  tiiis  is  an  aftion  for  the  whole  of  the  infurance-money  :  the  other 
part-owners  cannot  be  liable  to  contribution  in  this  aftion,  unlefs  there  was 
a  direftion  "  to  infure"  given  by  them  all :  this  cafe  comes  within  the  reafon 
©f  that   of  an  a£lion  brought  againfl   one  partner  who  can  come  againft  his 

copartner  for  a  contribution. Mr.  Juftice  Afton  concurred,   that  the  verdiQ; 

againfl  one  of  thefe  joint-owners  would  aff"e6l  the  other  of  them,  becaufe  that- 
other  would  be    obliged  to  contribute. Mr.  Juftice  Willes  was   likewife 

clear  in  opinion,  that,  as  the  point  to  be  left  to  the  jury,  \vas  "  whether  the^ 
other  joint-owners  being  informed  of  the  infurance  and  acquie/cing  in  it  was 
fufiicient  evidence  of  their  directing  it,"  this  other  joint-owner  could  not  be 
called  as  a  xoitnefs  to  difprove    it ;   becaufe  his  giving  foch  evidence  would 

tend  to  difcharge  himfelf. Mr.  Juflice  Afhurft  alfo  held,   that  the  plaintiff 

(notvvidiftanding  the  general  power  given  him  by  the  deed  "  to  aft  as 
hvjhand  of  the  flnp)  had  no  authority  to  injure  it;,  without  either  a  general 
direction  from  all  the  part-owners,  or  a  particular  direction  from  each: 
here  he  goes  upon  a  general  diredion  from  all ;  and  he  would  prove  this  by 
fhewing  "  that  they  all  knew  of  '  is  having  infured,  and  acquiefced  in  it :" 
the  other  joint-owner,  the  defendant  in  the  fecond  action,  is  called  to  difprove 
this;  but  it  is  to  be  obferved,  that  thefe  a6tions  are  brought,  not  againft 
each  defendant  for  his  proportion  of  the  infurance-money  ;  but  againft  each, 
for  the  xohole  of  it :  in  which  cafe,  it  is  an  obje6tion  ;  and  is  like  the  cafe  of 
an  aftion  brought  againft  one  partner  for  the  whole  debt  due  from  the 
copartnerfhip  :  there  is  no  foundation,  therefore,  for  the  granting  a  new 
trial, — Per  cur.  unanimoufly,  let  the  rule  for  a  new  trial  be  difcharged. 
— ^  Burr.  Eaft.  ii  Geo.  3. — French  v.  Backhoufe ;  fame  v.  Foulfton. 

2.    Any 


380  ORDINANCE. 

2.  Any  one  being  commilTioned  from  other  places  to  provide  an 
infurance  here,  fhall  produce  his  original  order,  and  it  fliall  be  mentioned 
in  the  infurance  for  whoju,  and  at  whofe  defire  he  has  taken  up  the  infurance. 
— Or  din.  of  Copenh. 

3.  See  Prelim.  Difc.  48.  Date,  Factor,  Injured,  Intelligence,  Inter ejl. 
Name,  Proof,  Projnietor,  Ship  or  Ships. 


ORDINANCE, 

1.  nr^HE  laws  and  edicts,  which  have  been  eftablifhed  and  publiflicd  in 
-*-  foreign  maritime  countries,  by  authority  of  the  prince  or  Uate, 
containing  the  rules  to  be  obferved  in  fuch  ftates,  with  regard  to  marine  affairs 
and  matters  of  infurance,  are  ufually  called  ordinances  : — although  they  are 
of  no  pofitive  authority  in  this  country,  yet  as  they,  as  well  as  the  laws, 
doftrines,  and  praftice  of  infurance  in  England,  have  their  foundation  in  the 
?^nz\QX\x.  fea-laws  Sind  ifages,  and  tlie  long  experience  and  colleftive  wifdom 
of  all  preceding  commercial  ftates  and  ages,  I  have  felecled  and  difpofed, 
under  their  proper  heads,  many  of  the  moft  mateirial  articles  (rejefting  others, 
which  are  defeftive,  obfcure,  or  unreafonable)  from  the  under-mentioned, 
being  the  moft  approved  ordinances  of  Europe,  which  are  now  obferved  and 
in  force ;  not  only  as  great  attention  has  been  paid  to  them  by  the  judges  in 
our  courts  of  judicature  in  tJie  difcuflion  and  decifion  of  divers  curious  points 
and  important  cafes  of  infurance,  but  as  they  tend  to  illuftrate  the  laws  and 
practice  here,  and  as  it  would  alfo  be  well  if,  in  fome  refpefts,  where  they 
fupply  the  defetls  of  our  laws,  or  differ  from  our  received  opinion  and  cuflom,- 

their  rules,  &c.  were  adopted  with  us. Of  all  the  foreign  ordinances,  that 

of  Louis  XIV.  of  France,  of  1681,  is  the  befl  digefled  and  the  mofl;  cele- 
brated :  the  learned,  judicious,  and  laborious  Monf.  Valin,  in  the  preface  to 
his  excellent  commentaries  upon  that  ordinance,  concludes  his  encomium 
of  it  in  thefe  terms,  "  Difons  tout;  elle  efl  telle  que  les  nations  les  plus 
jaloufes  de  notre  gloire,  depofant  leurs  prejuges,  leurs  haines  meme,  i'ont 
adoptee  a  I'envi  •comme  un  monument  eternel  de  fageffe  &  d'intelligence." 

■   2.     Ordinance  of  Florence,  1523 — See  Leghorn,   Policy,   Stowage. 

fSee   Average,   Bottomry,    Broker, 
Spain,  1556  I  ^^^^-..^  Intelligence,  Lofs,  Regifler, 

^5i^     I  Refpondentia,      Return,       Spain, 

1^1^   Vvera-Cruz. 

fSee  Bottomry,  Damage,  General  or 

.  ^       Grofs  Average,  Jet  fan.  Pilot,  Prior 

Antwerp,  1563  ^      /  p  r    /  c 

Injur ance,  Running  tout.  Seamen, 

{.Shipwreck,  Stozuage,  Voyage,  Wages.- 

-,  ^       fSee  Event,  letfon,  Infured,  Intel- 

GeNOA,  1610  <,.  in-        rr 

lligence,  Lives,  Prior  Infurance. 

Ordinance 


ORDINANCE. 


S8i 


Ordinance  of  France, 


1681  < 


MiDDLEBURG. 


1689 

1726 


Rotterdam, 


1721 
1726 


KONINGSBURG, 

about  1730 


Hamburgh,      1731  < 


RiLBOA, 


1738  < 


'See  Abandonment,  Arbitration,  Bank- 
rupt, Barter,  Blank,  Bottomrv,  Bro- 
ker, Captives,  Concealment,  Contribu- 
tion, Cutting,  Departure,  Double- In- 
furance.  Fraud,  Freight,  Jetfon,  In- 
fared,  Intelligence,  Intereji,  Leakage, 
Lives,  Lofs,  Mafqued  Ship  or  Proper- 
ty, Majler,  Payment,  PeriJIiablc  Com- 
modities, Pilot,  Piracy,  Policy,  Prize, 
Profit,  Proof,  Protcjl,  Ranfom,  Recap- 
ture, Regifer,  Rcinfurance,  Rcjlraint, 
Return,  Rifque,  Running  Foul,  Sal- 
vage, Sea-worthy,  Ship,  Ship  or  Ships, 
Shipwreck,   Touching,   Trufi,  Valua- 
ition.  Wager,  Wages. 
SeeAbandonmejit,  Broker,  Chamber  of 
AJfurance,  Double- tnfurance.  Fraud, 
Intelligence,    Lives,  Prior- Infurance, 
-Provifons,  Wages. 

See  Bottomry,   Broker,   Chamber  of 
Affurance,  Contraband,  Cutting,  De- 
parture, Difpute,  Embezzlement,  Ge- 
i  ntral-Average,   Jetfon,    Intelligence, 
Lives,  Negligence,  Over-loading,  Pro- 
fit,  Provifons,     Refiraint,  Running 
y_Foul,.  Seamen,  Ship,  Ship  or  Ships. 
See  Abandonment,  Bottomry,  Commu- 
nity,   Contribution,    Cutting,    Deck, 
Freight,   Infured,   Infiirer,   Intcrefi, 
<  Leakage,  Lighter,  Notice,  Petty- Ave- 
rage,   Pilaio,     Pilotage,    Provifons, 
Ranfom,  Rcinfurance,  Refiraint,  Sal- 
vage, Transfer,  Wager. 
See    Average,     Bottomry,      Broker, 
Convoy,  Deck,  Detention,  General-Ave- 
rage, Jetfon,    Intelligence,    NcgleEt, 
Perifhable   Commodities,    Prior-Infi' 
ranee.    Prize,     Proof,    Oiiaranlme, 
Ranfom,  Reclaim,  Reinf  trance,  Re- 
firaint, Running  Foul,  Salvage,  Ship 
Lor  Ships,  Unloading,    Written-Claife. 

See  Abandonment,  Bilboa,  Bottomry, 
Contribution,  Double- Infurance,  Em- 
bargo, General- Aver  age,  Infured,  In- 
elligence.  Limitation,  Lives,  Mafier, 
Notice,  Rein/'urance,  Refpondcntia, 
Ship,  Valuation. 

Ordinance 


382 


OUT 


Ordinance  of  Amsterdam, 


1744 
1756  i 

1775 


or  Royal  Charter 
of  the  Infurance 
Company  at  Co- 
penhagen,       1746 


Stockholm,     1750  < 


FIT. 

See  Bottomry,  Broker,  Chamber  of 
AJJurance,  Fraud,  General- Aver  age. 
Goods,  Intelligence,  Lives,  Notice, 
Payment,  Premium,  Prior- Infurance, 
Profit,  Provi/zons,  Ranfom,  Return, 
Rifque,  Seamen,  Seafon,  Ship,  Ship  or 

.Ships,  Valuation,  Wager,  Wages. 
See  Average,  Chamber  of  Affarance, 
Contribution,    Copenhagen,    Cutting, 

■I  Event,  General- Aver  age,  Jetfon, 
Order,  Over-loading,  Profit,  Running 
Foul,  Sailing  Orders,  Ship. 

rSee  Abandonme7it,  Boat,  Broker, 
Cancelling,  Chamber  of  Affurance, 
Commencement  of  Voyage  or  Rifque, 
Cutting,  Departure,  Double-Infu- 
rance.  Enemy,  EJlimate,  Fraud,  Ille- 
gality, Particular- Aver  age,  Perifhablt 
Commodities,  Petty- Aver  age.  Policy, 
Premium,  Re/lraint,  Running  Foul, 
Seafon,  Ship  or  Ships,   Wages,  War. 


3.     ^Ei.  Prelim.  Life.  26,  &<^,  ']6.   Barratry,  Infurance,  Lazo,   Maritime 
Law,  Regulation,  Sea  Laxos,   Statutes. 


OVER 


LOADING. 


1.     ANY  damage  occafioned  by  the  over-loading  of  a  (hip  fhall  not  come 
•^^  into  a  general  average^  but  is  to  be  borne  by  the  mailers  and  owners, 
or  by  the  merchant,   if  he  infilled  on  it,  after  he  had  been  forewarned  by  the 
mailer. — Or  din.  of  Rott. 

2.  Goods  thrown  over-board  on  account  of  the  weaknefs  of  the  Ihip,  or 
it's  being  over-laded,  and  goods  in  the  boat,  or  longboat,  being  thrown  or 
walhed  over-board,  lliall  not  be  liable  to  average. — Ordin.  of  Copenh. 

3.  See  Accident,  Damage,  Deck,  Infufficiency ,  Mafter,  Negligence,  Stowage. 


o 


u 


T. 


1.  /^UT-FIT  is  generally  ufed  to  fignify  the  expences  of  equipping  a 
^^  fliip  for  a  fea  voyage,  or  of  arming  her  for  war,  or  both  together ; 
and  confills  in  providing  her  with  a  fufficient  number  of  men,  to  navigate 
and  arm  her  for  attack  or  defence  ;  and  in  furnifhing  her  with  proper  mails, 
fails,  yards,  ammunition,  artillery,  cordage,  anchors,  and  other  naval  furni- 
ture ;  together  with  fufficient  provifions  for  the  fliip's  company. 


See  Freight,  Intereft,  Provifions,  Repair,  Ship,  Wages. 

OUT-PORTS. 


OWNER.  383 


OUT-PORTS. 

1.   T>  Y  out-ports  are  here  meant  all,  but  efpecially  the  principal   ports  in 

-^  Great-Britain,  except  the  port  of  London. The  very  extenfivc  in- 

creafe  of  the  trade  and  commerce  of  thefe  kingdoms  within  the  prefent  century, 
and  particularly  after  our  fuccefles  in  the  late  war  with  France  and  Spain,  hath 
naturally   more    and   more   extended    a    laudable    fpirit    of   enterprize    and 
emulation,  not  only  amongft  our  merchants  in  the  metropolis,  but  alfo  at  the 
principal  out-ports,  as  Briftol,  Liverpool,   Hull,  Lynn,    Whitehaven,   ports 
along  the  Channel,  8cc,  alfo  at  thofe  of  Scotland  and  Ireland  ;  and  in  propor- 
tion as  the  opulence  and  confequence  of  the  merchants   at  thofe  places  have 
increafed,  divers  of  them,  particularly  at  Briftol,  Liverpool,  and  Glafgow,  have 
been  induced  to   become  infurers,   in  no  inconhderable  degree,  of  the  pro- 
perty and  adventures  of  each  other;  although  on  account  of  the  great  value 
and  importance  thereof,   it  is,  and  will  be  always  neceffary  to  have  a  large, 
perhaps  much  the  larger  part  of  fuch  adventures  infured  in  London  :    nay  it 
is  not  unufual  for  orders  to  be  fent  hither^  efpecially  from  Briftol  and  Liver- 
pool,  for  reinfiirances  (although  thefe  are  illegal,  except  in  certain  cafes,  by 
Stat.  19  Geo.  2.)  when  any  intelligence  or  advices   are  received  therCj  which 
may  alarm  the  fears  of  the  adventurous  and  bold  underwriters  at  thofe  places  ; 
■who,  in  all  fuch  inftances,  never  fail  to  yield  the  palm  of  courage  and   intre- 
pidity to  the  fturdy  veterans  of  London :  and  this  is,   particularly,  and  not 
feldom,  the  cafe,  when  fome   of  the   merchants   at  thofe  two  places   (who 
though  in  general  very  regular  and  very  attentive  to  their  interefts)   happen 
to  have  fomehow  forgotten  or  neglected  to  make  their  infurances,  or  a  part  of 
them,  7.n  due  time. — Far  from  meaning  the  leaft  derogation   from  the  many 
refpe6lable  and  honourable  charafters  amongft  thofe  merchants  and  infurers, 
it  is  here  intended  merely  to  inculcate  and  promote  not  only  the  principles, 
but  the  praftice  of  that  good  faith,  regularity,  propriety,  and  probity,  which 
ought  always  in  an  efpecial  manner  to  prevail   in  tranfaclions   of  infurance ; 
and  without  which  the  confequences  may,  and  often  do  prove  equally  hurtful 
and  ruinous  to  the  one  party  as  to  the  other : — it  is  therefore   only   further 
Tequifite  in  this  place,   to  refer  the  reader  to  what  is  inferted  under  the  titles 
mentioned  below. 

2.     See   Prelim.   Difc.   26,  40,  44.  Concealment,  Fraud,  Infured,  Intelli- 
gence, Keinfurance,  Touching. 

O        W        N        E        R. 

SEE  Prelim.  Difc.  38,  54.  Barratry,  Bottomry,  Claim,  Convoy,  Document, 
Embezzlement,  Foreign  Ozuner,  Infufficiency,  Infured,  Mafler,  Negligence, 
Order,  Proof,  Property  &  Proprietor,  Sea-zvorthy,  Ship. 


PAROL- AGREEMENT. 


p. 


PAROL-AGREEMENT. 

1.  /^ASE. — A  policy  of  aflurance  was  drawn  from  Archangel  to  Leghorn, 
V-^  and  affumpfit  being  brought  upon  it,   the  defendant  faid,  that  the 
agreement  before  the  fubfcription  was,  that  the  adventure  fhould  begin  but 
from  the  Downs;  but  this  agreement  was  not  put  in  writing. — This  being 
but  a  mere  parol-agreement,   may  be  altered  or  difcharged  by  agreement, 
by  parol ;  but  without  it  be  put  into  writing,  it  fhall  be  taken  that  the  policy 
fpeaks  the  minds  of  the  parties ;    for  policies  are  things  well  known,  and  go 
as  far  as  trade  goes ;    and  to  fuffer  them  to  be  defeated  by  agreements  not 
appearing,  is  to  leflen  their  credit,  and  to  make  them  of  no  value,  which  yet 
are  countenanced  by  two  feveral  afts  of  parliament.     That  the  party  may 
as  well  fay,  he  is  to  have  ten  guineas  premium,  though  the  policy  fays  but 
three,  as  to  fay  he  infured  but  from  fuch  a  place,  viz.  the  Downs,  when  the 
policy  fays  it  was  from  Archangel. — Pemberton  faid,  that  policies  Avere  facred 
things,  and  that  a  merchant  fliould  no  more  be  allowed  to  go  from  what  he 
had  fubfcribed  in  them,  than  he  that  fubfcribes  a  bill  of  exchange  payable 
at  fuch  a  day,  Ihall  be  allowed  to  go  from  it,  and  fay  it  was  agreed  to  be 
upon  a  condition,  &c.  when  it  may  be  that  the  bill  had  been  negotiated ; 
for  though  neither  of  them  are  fpecialties,  yet  they  are  of  great  credit,  and 
very  much  for  the  fupport,  conveniency,    and  advantage    of  trade. — Skin. 
5h  55-  Trin.  34  Car.  2.  B".  R. — Kaines  v.  Sir  Robert  Knightly. 

2.     See  Commencement  of  Voyage  or  Rif que,  CoriJlruBion,  Contrail,  Mi/lake. 
Policy. 

PAROL-EVIDENCE. 

See    Evidence,  Mijlakc,  Order,  Parol- Agreement,    Privateer,  Witnefs. 

PARTICULAR       AVERAGE. 

\.  T   Have  already  inferted   under  title   Average,  the  dcjinition  of  fimple 

-^  or  particular  average,  as  drjtinguijlied  from  other  averages  ;    together 

Vrith  general  .or  fundamental  ?-w/«,  for  Hating  every  average,  ox  partial  lofs  ; 

alfo 


PARTICULAR      AVERAGE.  og^r 

alfo  fundry  other  particulars  relative  to  the  prefent  fubject :  and  whatCoever 
is  further  needful  concerning  it,  the  reader  will  find  circumftantially  noticed 
under  the  refpeftive  heads  throughout  this  work,  efpecialh'  thofe  which  are 
referred  to  at  the  foot  hereof,  and  of  title  Average. 

2.  Ever  fince  the  year  1749,  it  has  been  the  cuflom  in  England,  as  it 
was  before  in  moft  other  countries,  that  no  particular  average  fhall  be  paid 
by  the  infurers,  under  3  per  cent,  even  general  averages  are  not  paid  at 
Hamburgh,  if  the  damage  be  lefs  than  that ;  but  in  London  thofe  averages 
that  are  general  are  fatisfied  be  they  ever  fo  fmall.— Almoft  all  ordinances 
feem  deficient  in  not  fully  explaining  when,  and  after  what  manner,  the 
damage  fhall  be  deemed  to  exceed  3  per  cent. ; — to  elucidate  this  matter,  let. 
us  fuppofe  that,  in  a  chefl  containing  100  pieces  of  linen,  3  are  deduced  for 
damage,  and  as  fuch  allowed  to  the  buyer :  the  lofs  ought  to  be  recoverable 
from  the  infurers,  whether  that  cheft  was  in  a  policy  by  itfelf,  or  amongfl  a 
parcel  of  100  chefts  :  for  why  (hould  not  a  perfon,  who  has  infured  and  paid 
an  equal  premium  for  an  hundred  chefts,  have  the  fame  advantage  as  he  that 
is  infured  but  for  one  ? — Suppofe  a  merchant  has  fliipped  loi  chefts  of  goods, 
N*^  1  to  101 ;  of  which,  on  arrival,  3  chefts  are  by  fea  or  other  accident  fo 
fpoiled  as  to  be  worth  nothing:  if  the  damage  be  calculated  as  on  the  whole 
value  of  101  chefts,  it  will  not  amount  to  3  per  cent,  and  is  by  moft  infurers 
thought  not  to  be  recoverable  by  the  infured  ;  efpecially  if  the  infurance  be 
made  without  exprefsly  declaring  in  the  policy  the  particular  fum  infured 
on  each  cheft ;  or  that  "  average  ftiall  be  paid  on  each  package,  if  it  amounts 
to  3  per  cent."  (which  claufe,  however,  is  now  frequently  inferted) — but,  if  fuch 
a  cafe  came  to  be  rightly  explained  to  a  jury  of  merchants,  the  infurers 
might  reafonably  be  condemned  to  pay  the  value  of  thofe  3  chefts,  in  the 
fame  manner  as  they  would,  if  it  had  been  exprefled  how  much  was  infured 
on  each  cheft,  or  as  if  the  101  chefts  had  been   infured   in  five  different  and 

diftin6l  policies: — as   for  example, N''  1  to  20,  in  one  policy; — 21  to  40, 

in  a  fecond; — 41  to  60,  in  a  third; — 61  to  80,  in  a  fourth  ; — and  81  to  101, 
in  a  fifth : — the  infurers  in  this  cafe,  fuppofing  a  lofs  or  damage  of  one  cheft, 
of  the  goods  fpecified  in  each  of  the  three  firfl:  policies,  muft  unqueftionably 
have  paid  the  average,  which  would  have  amounted  to  5  per  cent,  becaufe 
the  lofs  of  a  cheft  would  have  been  one  in  twenty  :  and  further,  it  might  be 
confidered  as  quite  a  different  thing  to  find  whole  chefts  fpoiled. 

3.  The  law,  or  cuftom,  by  which  the  infurers  are  not  obliged  to  pay  any 
particular  average  under  3  per  cent,  was  probably  eftabliflied  in  order  to  free 
them  from  the  vexation  of  being  called  upon  for  every  trifling  damage  that 
might  happen  to  a  few  pieces  in  a  cheft  or  bale  :  yet  it  feems  equitable  that, 
notwithftanding  an  infurance  be  made  under  the  general  name  of  goods,  at 
leaft  each  different  parcel  or  kind  of  goods  ought  to  be  confidered  by  itfelf, 
and  the  infurers  made  liable  for  what  damage  exceeds  3  per  cent,  in  fuch  a 
parcel,  even  if  the  aforefaid  claufe  were  not  inferted  in  the  policy : — how- 
ever, as  we  have  as  yet  no  fettled  rules  in  this  point,  the  beft  way  is  to  fet 

5  B  matters 


385  PARTNERSHIP. 

matters  out  of  difpute,  by  explications  in  the  policy ;  and  no  reafonable 
infurer  ought  to  objeft  to  any  divifion,  or  fixing  particular  values  on  parcels 
of  bale  goods: — if  a  perfon  (hips  1,000  pieces  of  long  ells  divided  into  50 
bales  of  20  pieces,  each  piece  worth  il.  he  may  fay,  "  ],oool.  on  50  bales  at 
20I.  per  bale  ;  and  that  average  fhall  be  paid  on  each  bale,  if  it  amounts  to  3 
per  cent." — ^but  no  infurer  ought  to  admit  any  divifion  in  the  value  of  goods 
of  another  nature;  fuch  z&fugar,  hemp,  &c.  where  the  exemption  of  5  or  10 
per  cent,  average  is  from  other  confiderations. 

4.  Under  this  head  is  included  the  damage  happening  to  the  fhip  or 
cargo,  e?L.ch.Jeparately,  without  any  fault  of  the  mailer  or  fliip's  company : 
in  this  cafe  fuch  damage  is  chargeable  to  every  diftincl;  proprietor,  and  thefe 

are  afterwards  to  be  made  good  by  the  infurer. In  like  manner,  difburfe- 

ments  unavoidably  furnifhed  for  a  fhip  which  has  run  aground  or  {truck  upon 
a  rock,  but  without  taking  out  it's  lading,  fliall  be  charged  only  to  the  fhip : 
likewife  in  cafe  any  of  the  fhip's  apparel,  as  boats,  anchors,  fails,  cordage,  or 
any  thing  elfe  pertaining  to  the  JJiip  only,  be  by  privateers  or  pirates,  taken 
away  and  pillaged,  either  in  harbour  or  open  fea ;  likewife  goods  taken  and 
plundered  by  privateers   or  pirates,  when  the   mafter  did  not  occafion  the 

taking  away  of  any  particular  part  of  the  cargo. Goods,  being  part  of  the 

cargo,  damaged  by  weather,  or  the  fea,  they  alone  are  to  bear  fuch  damages. 
— Ordin.  of  Stockh. 

5.  See  Accident,  Average,  Commodity,  Cutting,  Damage,  Freight,  General 
Average,  Goods,  Hemp,  hifufficiency,  Interejl,  Perifhable  Commodities,  Petty 
Average,  Repair,  Robbery,  Ship,  Sugar,  Theft,  Valuation, 

PARTNERSHIP. 

1.   T>  Y  Stat.  6  Geo.  1.   c.  18. — Any  particular  perfon  fliall  be  at  liberty  to 
•'J  underwrite  policies,  or  may  lend  money  by  way  of  bottomry,  fb  as 
tlie  fame  be  not  on  the  account  or  rifque  of  a  corporation,  or  of  perfons 
afting  in  partnerfliip. 

2.  Remark. — The  above  is  a  claufe  of  the  a6l  of  parliament,  by  which 
the  two  charters  were  granted  to  incorporate  the  London- Afjurancc,  and  the 
Royal- Exchange- AJfurance  companies  : — notwithflanding  it  prohibits  in  exprefs 
terms  any  particular  perfon  from  underwriting  of  policies  "  on  the  account 
or  rifque  oS.  perfons  afting  m.  partnerfhip,"  nothing  is  more  common  than  for 
one  partner  of  a  commercial  houfe  to  underwrite  on  the  account  and  rifque 
of  the  other  partners  and  himfelf,  although  he  fubfcribes  the  policies  in  his 
own  name  only :  'tis  true  he  muft  fue  and  be  fued  in  his  feparate  capacity ; 
but  the  intention  of  the  reflraint  by  the  att,  in  favour  of  the  two  corporations, 
is  unqueflionably  defeated. 

3.  See  Prelim,  Difc,  23.  Bottomry,  Company,  Eajl-India,  Society. 

PASS 


[    38?    ] 
PASS      OR      PASSPORT. 

1.  TJASS,  or  paflport,  is  a  perminion  granted  by  any  flate  to  navigate 
-*-  in  fome  particular  fea,  without  hinderance  or  moleftation  from  it; 
it  contains  the  name  of  the  vefTel,  and  that  of  the  mafter,  together  with  her 
tonnage,  and  the  number  of  her  crew,  certifying  that  flie  belongs  to  the 
fubjefts  of  a  particular  ftate,  and  requiring  all  perfons,  at  peace  with  that 
ftate,  to  fuffer  her  to  proceed  on  her  voyage  without  interruption. 

2.  Case. — In  an  aftion  upon  a  policy,  which"  warranted  thatthe  fliip 
fhall  have  four  pafTes,  viz.  a  pafs  from  the  king  of  England,  from  the  king 
of  France,  from  the  king  of  Poland,  and  the  ftates  of  Holland ;  and  the 
goods  were  to  be  the  goods  of  fuch  a  Polifh  fubjeft  on  board  the  fliip,  called 
the  City  of  Warfaw  :" — it  appeared  upon  the  evidence,  that  the  paffes  bore 
date  in  April  or  May,  and  that  the  fhip,  to  which  they  applied  thefe  pafles 
then,  was  called  by  another  name  ;  and  that  fhe  was  not  named  the  City  of 
Warfaw  before  the  Auguft  following ;  and  therefore  thefe  were  not  good 
and  effettual  paffes  for  this  fl:iip  according  to  the  guaranty  of  the  policy, 
•which  intended  good  pafles,  and  not  elufory,  vain  paffes ;  and  they  being 
a  fraud  upon  the  fubfcribers,  the  policy  fhall  not  bind  them  -.^-another 
objeftion  was,  that  the  paffes  were  for  goods  which  belonged  to  the  fubjeSs 
of  the  king  of  Poland,  and  fo  reflrained  only  to  them  ;  but  the  goods  on 
board  were  not  of  the  fubjefts  of  Poland,  but  of  Holland,  and  therefore  not 
within  the  intent  of  the  policy. — Skin.  404.  Mich.  5  W.  and  M.  at  Guildhall, 
B.  R. — Anon. 

3.  To  the  end  that  all  manner  of  dilTentions  and  quarrels  may  be  avoided 
and  prevented  on  one  fide  and  the  other,  it  is  agreed,  that  in  cafe  either 
of  their  royal  majellies,  who  enter  into  this  alliance,  fhould  be  engaged  in 
war,  the  fhips  and  veffels  belonging  to  the  fubjefts  of  the  other  ally  muft  be 
furnifhed  with  fea-letters  or  paffports,  expreffmg  the  name,  property,  and 
bulk  of  the  fliip,  as  alfo  the  name  and  place  of  habitation  of  the  raafler 
and  commander  of  the  faid  fhip,  that  it  may  appear  thereby,  that  the  fhip 
really  and  truly  belongs  to  the  fubje6ts  of  one  of  the  princes  ;  which  paiffports 
fhall  be  made  out  and  granted  according  to  the  form  annexed  to  this  -ireaty : 
— they  fliall  likewife  be  recalled  every  year,  that  is,  if  the  fhip  happens  to 
return  home  within  the  fpace  of  a  year. — It  is  likewife  agreed,  that  fuch  fhips 
being  laden,  are  to  be  provided  not  only  with  paffports,  as  above  mentioned, 
but  alfo  with  certificates,  containing  the  feveral  particulars  of  the  cargo, 
the  place  whence  the  fhip  fiiiled,  and  whither  flie  is  bound ;  fo  that  it  may 
be  known  whether  any  forbidden  or  contraband  goods  as  are  enumerated  in 
the  19th  article  of  this  treaty,  be  on  board  the  fame  ;  which  certificates  fhall 
be  made  out  by  the  officers  of  the  place  whence  the  fhip  fet  fail,  in  the 
accr.flomed  form :  and  if  any  one  fhall  think  it  fit  or  advifable  to  exprefs  in 
the    faid  certificates  the   perfon  to  whom  they   belong,  he  may  freely  do  fo. 

-In 


388  PAY       M       El      N 

-In  cafe  the  ihips  of  the  fubjefts  and  inhabitants  of  both  their  mofl:  ferene 


royal  majeflies,  either  on  the  fea  cOafl  or  ori  the  high  fcaSj  fhall  meet  with 
the  men  of  war  of  the  other,  or  with  privateers,  the  faid  men  of  war  and 
privateers,  for  preventing  any  inconvenience,  are  to  remain  outof  cannon-fhot, 
and  to  fend  a  boat  to  the  merchant  (hip  which  has  been  met  with,  and  fhall 
enter  her  with  two  or  three  men  only,  to  whom  the  mafter  or  commander 
of  fuch  fhip  or  vefTcl  (hall  fhew  his  paffport,  concerning  the  property  thereof, 
made  out  according  to  the  form  annexed  to  this  prefent  treaty ;  and  the 
fhip  which  fhall  exhibit  one,  fhall  have  free  pafl'age,  and  it  fliall  be  w^holly 
unlawful  any  way  to  molefl  her,  fearch,  or  compel  her  to  quit  her  intended 
courfe.— ■ — But  that  merchant  fliip  of  the  other  party  which  intends  to  go  to 
a  port  at  enmity  with  the  other  confederate,  or  concerning  whofe  voyage 
and  the  fort  of  goods  on  board  there  may  be  juft  fufpicion,  fhall  be  obliged 
to  exhibit,  either  on  the  high  feas  or  in  the  ports  and  havens,  not  only  her 
pafTports,  but  her  certificates,  exprefhng  that  they  are  not  of  the  kind  of 
goods  prohibited,  which  are  fpecified  in  the  igih  article. — Treaty  viitk 
Fi'ance,  1713. — — The  like  rules  concerning  pafTports  are  made  in  the  Treaty 

with  Holland,    1674; Treaty  with  Spain,  iGG^j  ; — — Treaty  with  Sweden, 

1661 ; Treaty  with  Denmark,  1669. 

4.  By  Stat.  4  Geo.  2.  c.  18.  f.  1. — Forging  or  counterfeiting  any  mediter- 
ranean pafs,  or  altering  or  erafmg  any  pafs  made  out  by  the  commiffioners 
of  the  admiralty,  or  publifhing  as  true  any  forged,  altered,  or  erafed  pafs, 
knowing  the  fame  to  be  forged,  &;c.  is  felony  without  benefit  of  clergy. 

5.  See  Claim,  Contraband,  Document,  Freedom  of  Navigation,  Illegality, 
Law  of  Nations,  MafquedShip  or  Property,  Neutral  Ship  or  Property,  Property. 


PAYMENT. 

1.  T  F  a  man  pays  money  upon  a  policy  of  aflurance  fuppofing  a  lofs, 
-*-  when  in  truth  there  was  none,  he  may  bring  an  aftion  of  indebitatus 
affumpfit,  for  fo  much  money  received  to  his  ufe  : — 'and  whether  he  parts 
with  his  money  by  miftake  or  through  fraud  in  the  receiver,  it  is  the  fame 
thing. — Skin.  412. — 1  Salk.  22. — 6  Mod.  161. 

2.  Case. — Treby,  chief juftice,  faid,  indebitatus  aflbmpfit  lies  for  money 
paid  by  miftake  or  deceit,  but  not  for  money  paid  knowingly  on  illegal 
confideration  ;  as  the  party  that  pays  it  is  particeps  criminis,  and  there  is  no 
reafon  that  he  fhould  have  his  money  again. — One,  bound  in  a  policy  of 
affurance,  believing  the  fhip  to  be  loft,  when  it  was  not,  paid  his  money  ; 
and  it  was  held,  he  might  bring  an  affuinplit  for  the  recovery  of  the  fum 
paid.' — Salk.  22.  Hil.  5  Wil.  3. — Tomkins  v.  Bcrnet. 

3.  By  Stat.  19  Geo.  2.  c.  37.  f  7. — It  fhall  be  lawful  for  any  perfon  or 
body  corporate  fued  on  any  policy  of  aflurance,  to  bring  into  court  any  fum 

of 


PEASE.  38g 

oF money  ;  and  if  any  fuch  plaintiff  refufe  to  accept  fuch  fum  with  cofts  to  be 
taxed  in  difcharge  of  fuch  aftion,  and  afterwards  proceed  to  trial,  and  the 
jury  affefs  not  damages  exceeding  the  fum  brought  into  court,  fuch  plaintiff 
fhall  pay  to  fuch  defendant  cofts  to  be  taxed. 

4.  Payment  of  money  into  court,  is  an  acknowledgement  of  being  liable 
to  the  aftion. — 5  Burr.  2640. 

5.  The  infurers  (hall  alfo  be  obliged,  when  a  repartition  of  damages  fliall 
have  been  made  and  iffued  forth  by  the  commiffioners  of  infurance  and 
averages  in  this  city,  immediately  to  make  good,  and  pay  the  faid  damages  : 
and  in  default  thereof,  the  infurer  fhall  be  obliged  to  pay  the  infured  interejl 
at  8  per  cent,  per  annum,  from  the  time  that  the  faid  repartitions  fhall 
be  difpatched,  and  iffued  forth,  till  the  aclual  payment  of  the  money, 
wherein  the  infurers  are  caft  t)y  the  faid  commiffioners. — Ordin.  of  Avift. 

6.  The  infurer  fhall  be  allowed  to  produce  proofs  againft  any  documents 
the  infured  may  give ;  neverthelefs  he  fliall,  in  the  mean  time,  pay  the  fum 
by  him  underwrote,  upon   the  infured's  giving  fecurity. — Ordiyi.  of  France. 

However,  the  judge  may  caufe  the  payment  to  be  deferred,   and  even 

difpenfed  with,  according  to  circumilances,  or  the  greater  or  lefs  credibility 
of  die  documents,  or  evidence  brought  by  the  affured : — Arret  of  Pari,  of 
Aix,  23  Sept.  1745. — Idem,  2  Febi  1741- — Sentence  at  Marfeilles,  4  DeCi 
1751.  Solikewife  if  the  policy  be  notadjufled. — Stracca  de  afjcc.  gl.  29.  n.  8; 
—^Sentence  «Lt  Marfeilles,  31  Jan.  175x1 

7.  See  Adjiijiment,  Bail.  Broker,  ContraEl,  Intereft  of  Money,  Limitation-, 
Lives,  Lofs,   Mijtake,  Proof,   Tender  of  Money. 


PEASE* 

1.  /^  A  S  E. — An  aftion  was  brought  againft  the  defendant  to  recover  a  lofs 
^^  on  peafe  damaged  very  much  by  fea  water  ;  and  determined  at 
Guildhall,  Mich.  1779,  that  peafe  are  to  be  confidered  as  co?-7z,  ox  grain, 
and  fome  flatutes  were  cited  in  confirmation  thereof;  and  that  confequently 
by  virtue  of  the  printed  claufe  or  N.  B.  at  the  foot  of  the  policy,  peafe  alfo 
dtX&free  of  average,  &c. — On  a  new  trial,  the  plaintiff  demanded  a  total  lofs, 
becaufe,  though  the  peafe  arrived  at  the  deftined  port,  yet  they  were  fo  much 
damaged  and  fpoiled  that  they  fold  for  lefs  than  the  freight  and  charges 
amounted  to  ;  and  the  cafe  of  Boyfield  v.  Brown,  10  Geo.  2.  in  Strange  106^, 
was  quoted  in  fupport  of  this  demand  (fee  Corn) — but  that  cafe  having 
occurred  before  the  infertion  of  the  above-mentioned  claufe  or  N.  B.  at  the 
foot  of  our  policies,  feveral  brokers  and  other  experienced  pcrfons  were 
examined,  and  no  inftance  could  be  produced  of  a  total  lofs  by  fea  damage 
(though  it  had  often  happened)  having  been  paid,  or  fettled  by  underwriters, 

Q  C  fince 


39^ 


PERISHABLE    COMMODITIES. 


fmce  the  infenion  of  the  faid  claufe,  on  either  of  the  commodities  therein 
mentioned  ; — moreover  it  was  argued  for  the  defendant,  that  the  claufe 
being  founded  on  a  confideration  of  the  peri/Jiable  nature  of  thofe  commo- 
dities, it  was  not  reafonable  to  fuppofe,  that  it  could  ever  have  been  meant 
that  the  infurer  (hould  only  be  free  from  any  partial  damage,  even  fo  far 
it  might  be  as  go  per  cent,  or  more,  and  yet  that  he  ftiould  be  liable  to  pay 
for  damage  amounting  to  lOO  per  cent,  or  a  total  lofs. — ^Vcrdift  for  the 
defendant,  before  Lord  Mansfield,  at  Guildhall,  Hil.  1780. — Ma/on  v.  Skirrozv 
or  Skurray. 

2.  The  inftance  of  a  parcel  of  bifcuit  (on  which  I  was  an  infurer)  Hated 
in  the  Prelim.  Difc.  p.  43,  is  hmilar  to  the  above-mentioned  cafe  ;  and 
having  been  referred  to  arbitrators  (fmce  the  printing  of  the  faid  difcourfe) 
they  decided  in  like  manner  againll  the  claim  of  the  aflured. 

3.  See  Average,  Commodity,  Corn,  Daviage,  Free  of  Average,  Goods, 
Grain,  Perijtiable  Commodities. 


PERISHABLE     COMMODITIES. 

1.   Tr\  A  M  A  G  E  S   happening  to  perifliablc  goods  from  their  own  nature, 
-^--^    are  not  to  be  borne  by  the  infurer. 

2.  By  Stat.  12  A7m,  c.  18. — made  perpetual  by  ^Geo.i.  €.  12. — The 
colIe£lor  of  the  cuftoms,  or  any  other  perfon  who  fiiall  be  employed  in 
preferving  any  veffel  in  diftrefs,  fliall,  within  thirty  days  after  the  fervice 
performed,  be  paid  a  reafonable  reward  for  the  fame,  and  in  default  thereof, 
that  the  fiiip  or  goods  fo  faved  fliall  remain  in  the  cuftody  of  the  colleftor 
till  fuch  time  as  he  and  thofe  employed  by  him  (hall  be  reafonabiy  gratified 
for  their  afliflance  and  trouble,  or  good  fecurity  given  for  that  purpofe  : — 
fthis  is  where  the  merchant  claims  his  ftiip  or  cargo  ;  but  in  cafe  no  perfon 
appears  to  claim,  there  is  the  foWow'mg  provi/o^  that  goods  which  are  in  their 
nature  peri/kable,  Ihall  be  forthwith  fold  by  the  colleftor ;  and  that,  after 
deducing  all  charges,  the  refidue  of  the  price,  with  a  fair  and  juft  account 
of  the  whole,  fliall  be  tranfmitted  to  the  exchequer,  there  to  remain  for  the 
benefit  of  the  rightful  owner ;  and  tliat  tlie  fame  (hall  be  delivered  to  him  [q 
foon  as  he  appears  and  makes  a  claim. 

3.  Case. — Brunton  and  Chalmers,  owners  of  a  vefl'el  called  the  Serpent  3 
Prize,  loaded  the  fame  with  too  quarters  of  wheat  for  Zealand :  in  her 
voyage  (he  was  flranded  at  a  place  called  Redfcar,  near  Stocktown  :  Chalmers 
having  got  notice  of  the  accident  repaired  immediately  to  Redfcar;  and 
found  his  wheat  in  the  hands  of  John  Wilfon  colletlor  of  the  cuftoms  at 
Stocktown ;  part  of  it  laid  up  in  lofts,  and  part  in  the  open  fields ;  the 
whole  greatly  damaged  by  fea-water :   finding  it  neceflary  to  difpofe  of  the 

wheat 


I 


PERISHABLE    COMMODITIES. 


3,9^ 


wheat  inftantly,  he  apphed  to  the  coUeftor  for  hberty  to  fell ;    offerhig  to  put 
the    price  m   his  hand  as  fecurity    for   the   falvage :    this   being  obllinately 
refufed,  he  took  a  proteft  againfl  the  colleftor,   and  brought  againll  him  an 
aftion  of  trefpafs  upon  the  cafe  before  the  king's  bench  :    and  the  defendant 
having  put  himfelf  upon  his  country,   the  caufe  came  to  a  trial  at  Newcaitle  ; 
where  3.Jpecial  verdid  was  returned,  in  fubftance  finding,  '''  that  all  reafonable 
care  was  taken  of  the  wheat  by  the  colledor,  and  others  by  his  order  :    that 
on  the  3d   of  06lober  then  next  following,  James  Chalmers  applied  to  the 
collector,  dcfiring  that  the  wheat,  being  much  damaged,  might  be  forthwith 
fold  ;    and  that  the  money  produced  by  fuch  fale  might  be  left  in  the  hand  of 
the  colletlor  to  anfwer  all   charges ;  but  did  not  then  offer  to  pay  to   the 
coUeftor  any  money  for  falvage  :    neither  did  the  colletlor  then  make  any 
demand  on    that   account,  he    not  knowing   at  that  time  what  the  falvage 
amounted  to  ;  but  then  refufed  to  deliver  the  faid  wheat,  or  permit  the  fame 
to  be  fold,   he  having  an  order  from  the  commiflioners  of  his  majefly's  cufloras 
for  that  purpofe  :"'  and  the  verdift  concludes  thus ;    "  but  whether,  upon  the 
whole  matter  aforefaid  by  the  faid  jurors  in  form  aforefaid  found,  the  within- 
named  John  Wilfon  be  guilty  of  the  premifes  within  written  or  not,    the 
faid  jurors  are  altogether   ignorant,  and  pray  advice  from  the  court  there- 
upon.' — The  judge  at  that  circuit  having  referred  the  caufe  to  the  court  of 
king's  bench  at  Weflminfler,  judgment  was  at  lad   there   given  on  the  18th 
of  July    1751,  after   feveral    continuations,   finding,   "  that   the    faid   John 
Wilfon  is  not  guilty  of  the  premifes ;  that  the  faid  Brunton  and  Chalmers 
fliall  take  nothing  by  their  faid  bill ;  but  that  they  be  in  mercy,  &c.  for  their 
falfe  claim  ;   and  that  the  faid  John  Wilfon  go  thereof  without  day,  &c.  and 
it  is  further  confidered,  that  the  faid  John  recover  againfl  the  faid  Brunton 
and  Chalmers  fixty  pounds,   for  his  cofl  and  charges  laid  out  by  him  about 
his  defence  on  this  behalf;    and  that  the  faid  John  have  execution  thereof, 

&c.'" For  this  fum  of  60I.  awarded   to  the  colle£lor  for  cofls,  he  brought 

an  a6lion  againfl  Brunton  and  Chalmers,  before  the  court  of  fejjion  ;  and  in 
fupport  of  this  claim  fet  forth,  that  it  is  founded  on  the  prefumption,  quod 
■res  judicata  pro  veritate  habetur. — The  defendant  infilled,  that  this  prefump- 
tion mufl  yield  to  direft  evidence  of  injuflice,  which  would  clearly  appear 
upon  comparing  the  decree  with  the  flatute  :  and  the  following  circum  fiances 
were  urged  ;  firfl,  that  though  the  wheat  was  in  a  perifhing  condition,  the 
colle6lor  refufed  to  permit  the  fame  to  be  fold,  even  contrary  to  his  own 
mterefl,  as  the  price  to  him  was  a  better  fecurity  for  the  falvage  than  the 
damaged  wheat :  fecondly,  when  the  application  for  fale  was  made,  the 
colleclor  was  not  ready  to  make  his  claim  for  falvage,  not  knowing  at  that 
time  the  amount  thereof;  and  in  thefe  circumflances  to  forbid  the  fale,  was 
not  only  rigorous,  but  a  pofitive  aft  of  injuflice  ;  it  was,  to  abandon  the 
wheat  to  deflrudlion,  without  permitting  the  defendants  to  interpofe  :  even 
ready   money  to  pay  the  falvage  would  not  have  availed  them,  feeing  the 

colleftor  was  not  in  a  condition   to  make  any  demand. This  cafe  being 

reported  by  the  lord  ordinary,  it  occurred  at  advifing,  that  the  flatute  provides 
nothing  about  felling  perilhable  goods,  except  in  the  cafe  that  the  merchant 

does 


392  PERISHABLE    COMMODITIES. 

does  not  appear  to  claim  the  wrecked  goods :  therefore  the  prefent  cafe  is 
not  provided  for  by  the  Itatute  ;  it  is  a  cafus  omijfus,  which  in  equity  mull  be 
fupplied  agreeably  to  the  intendment  and  purpofe  of  the  flatute. — Viewing  the 
matter  in  this  light,  it  appeared  in  the  firlt  place,  that  the  defendants,  being 
proprietors  of  the  wheat,  were  entitled  to  difpofe  of  it,  provided  the  colleftor 
fuffered  no  prejudice  as  to  his  claim  of  falvage,  which  he  certainly  did  not  if 
the  price  were  put  in  his  hand  :  nay  his  fecurity  would  be  improved  by  the 
fale,  which  would  attbrd  him  current  coin  inftead  of  perifhing  wheat :  it  was 
confidered,  in  the  fecond  place,  that  this  is  agreeable  to  the  intendment  of 
the  ftatute  ;  for  if  the  cuftomhoufe-officer  mufl  difpofe  of  perifliable  goods 
•when  there  is  no  claim,  much  more  where  the  owner  appears,  and  infills  for 
a  fale  :  thirdly,  the  flatute,  when  it  entitles  the  cuflomhoufe-officers  to  retain 
the  goods  for  fecurity  of  falvage,  undoubtedly  fuppofes  that  the  officer  can 
inftruft  his  claim,  in  order  that  the  merchant  may  have  inflant  poifeflTion  of 
the  goods,  upon  paying  the  falvage  :  in  this  view  the  conduft  of  the  colleftor 
was  altogether  unjufliliable :  the  flatute  gives  no  authority  for  retaining  the 
goods  as  a  fecurity  for  the  falvage,  unlefs  as  a  fuccedaneum  when  fatisfaftion 
is  not  offered  in  money  ;  and  as  the  colleftor  here  was  not  ready  to  receive 
fatisfaftion,  it  was  a  trefpafs  to  retain  the  goods  in  a  perifhing  condition, 
becaufe   the  flatute  gave  him  no  authority  to  aft  in  fo  opprefTive  a  manner. 

With   regard   to    this    matter   in   general,    one    obfervation   had   great 

weight,  that  it  never  could  be  the  intention  of  the  legiflature,  to  force 
merchants  firfl  to  pay  falvage,  and  thereafter  to  undergo  the  rifque  of 
perifhable  and  damnified  goods,  the  price  of  which  poffibly  might  not 
amount  to  the  falvage :  if  the  goods  be  abandoned  to  thofe  who  fave  them, 
there  can  be  no  claim  for  falvage  ;  for  "falvage  can  never  exceed  the  benefit 
procured  by  it :"  upon  this  footing  the  colleftor  could  not  in  common  juflice 
demand  more  than  the  value  of  the  goods  for  his  falvage  ;  and  a  fortiori 
could  not  demand  any  fecurity  beyond  that  value  :  the  court  accordingly 
unanimoufly  refufed    to  interpofe    their   authority    for  execution    upon    this 

judgment. This  judgment  of  the  king's  bench  may  poffibly   be  juflified 

as  pronounced  by  a  court  of  common  law,  which,  in  interpreting  flatutes, 
mufl  adhere  to  the  letter,  without  regarding  the  intention  of  the  legiflature : 
if  fo,  the  proprietors  of  the  wheat  ought  to  have  applied  to  the  chancery, 
or  have  removed  this  caufe  there  by  a  certiorari.  If  courts  of  common  law 
in  England  be  fo  confined,  their  conflitution  is  extremely  imperleft  :  but 
fuppofing  the  court  of  king's  bench  to  have  afted  properly  according  to  it's 
conftitution,  it  was  notwitlifhmding  right  in  the  court  of  feffion,  to  refufe 
execution    upon  a  foreign  decree  that  is  materially  unjufl,   or   contrary   to 

equity. An  appeal  entered  by  Colleclor  Wilfon  was  heard  ex  parte,  and 

the  decree  of  the  court  of  feffion  reverfed  ;  by  which  the6ol.  of  cofls  decerned 
in  the  court  of  king's  bench  was  made  efleftual  againfl  Brunton  and  Chalmers. 
— Wilfon  v.  Brunton  &  Chalmers. — Ld.  Kaims  Prin.  Eq.  370. 

4.     Lord  Kaims  makes  the  following  remarks   on  the  above-mentioned 
reverfal. — The  decree,  if  I  have  been  rightly  informed,  was  reverfed  for 

the 


PERISHABLE     COMMODITIES. 


393 


the  following  reafon ;  that  in  England  the  decree  of  a  foreign  fupreme  court 
has  fuch  credence,  that  judgment  is  immediately  given,  without  entering  into 
the  merits,  provided  the  matter  have  been  litigated ;  that  in  all  countries  the 
decrees  of  the  court  of  admiralty  are,  for  the  fake  of  commerce,  entitled  to 
immediate  execution  ;    and  that  the  fame  credence  ought  to  have  been  given 

by  the    court  of  feffion  to  the  judgment  of  the  king's  bench. Hence  it 

would  appear,  that  in  England  greater  authority  is  given  to  foreign  decrees 
than  in  any  other  civilized  country  ;  and  indeed  greater  than  can  be  juflified 
from  the  nature  and  conftitution  of  any  court.  A  foreign  decree  has  no  legal 
authority  in  England  ;  and  for  the  courts  of  WeftminRer  blindly  to  authorize 
execution  upon  a  foreign  decree,  without  admitting  any  objeftion  againfl  it,  is 
a  praftice  that  cannot  be  approved,  becaufe  it  muft  frequently  lead  them  to 
authorize  injuflice.  But  admitting  the  praftice  of  England,  it  ought  to  have 
been  confidered,  that  the  praftice  of  England  is  no  authority  in  Scotland: 
in  reviewing  the  decrees  of  the  court  of  fcflion,  the  law  of  Scotland  is  the  rule  : 
and  if  the  decree  in  quellion  was  agreeable  to  the  law  of  Scotland,  it  ouo-ht 
to  have  been  affirmed  ;  efpecially  as  the  law  of  Scotland  with  refpecl  to 
foreign  decrees  is  not  only  in  itfelf  rational,  but  agreeable  to  the  laws  of  all 
other  civilized  nations,  England  excepted.  The  houfe  of  lords,  we  may 
reft  affured,  could  not  intend  to  try  the  merits  of  a  Scotch  decree  by  the  law 
or  praclice  of  England.  But  as  the  appeal  was  heard  ex  parte,  the  reverfal 
has  ceitainly  been  founded  upon  the  erroneous  fuppofition,  that,  with  refpeft 
to  foreign  decrees,  the  praftice  of  Scotland  is  the  fame  with  that  of  England, 
— Frin.  of  Equ.  373. 

5.  When  perifliable  commodities  are  fpecified  in  the  policy  according  to 
the  direftions  in  art.  8,  tit.  4,  and  that  they  fpoil  or  receive  damage  by  reafon 
of  their  natural  quality  of  themfelves  :  as  for  example,  when  wines  turn 
four,  or  leak  out,  Seville  or  China  oranges,  lemons,  apples,  and  pears, 
perifli,  chefnuts  and  corn  is  heated,  and  fo  forth  ;  as  llkewife  when  rats  or  mice 
eat  or  deftroy  any  thing  ;  in  all  fuch  cafes,  the  afTurer  is  not  liable  to  make 
good  the  damage,  but  the  fame  remains  for  the  particular  account  of  every 
one,  to  Avhom  the  goods  belong :  unlefs  fuch  damage  arofe  from  hence, 
that  the  fhip  was  prevented  from  purfuing  it's  voyage  by  reafon  of  reftraint, 
&c.  by  external  violence  and  foreign  caufes,  either  by  breakings  of  the  fea 
over  them,  by  the  fhip's  fpringing  a  leak,  and  opening  itfelf. — Ordin.  ofHamb. 

6.  Perishable  goods,  as  fugar,  fait,  vitriol,  alum,  corn,  herrings  dried, 
filh,  hops,  peafe,  beans,  cheefe,  wool,  furs,  fkins,  feeds,  flax,  hemp,  untarred 
cordage,  and  cable  yarn,  paper,  books,  fhall  be  declared  by  the  party  to 
whom  the  infurance  is  made,  and  be  inferted  in  the  policy,  under  penalty 
that  the  infurance  (hall  be  of  no  effeft,  and  the  infurer  Ihall  keep  the 
premium. — Ordin.  of  Stockh. 

ji  The  lofs,  diminution,  or  wafte,  that  may  happen  from  the  perifhable 
quality  of  any  thing,  (hall  not  fall  on  the  infurers. — Ordin.  of  France. 

5  D  8.     Whatsoever 


•     •  ITT  n  f^i  I  ..... 

8.  Whatsoever  lofs  or  damage  happens  from  the  nature  of  the  com- 
modity, without  florm  or  other  perils  of  the  fea,  is  jFor  the  account  of  the 
proprietor,  and  not  the  infurer. — Guidon,  c.  5.  art.  8.  Stypmannus,  ad  jus 
marit.  par.  4.  c.  7.  n.  320  and  feq. 

(J.     See    Pi  dim.    Difc.    43.  Abandonment,   AcciaMt;   Commodity,    Corn, 
Damage,    Detention,    Foreign  Adjujlment,    Forcigil'ChXiri,   Free  of  Average, 
Fr fight.  Goods,  Hemp,  In/iifficiency,  Leakage,  Par ticuhr  Average,  Peafe,  Salvage,  ] 
Sugar. 

PETTY      AVE    R  'A    G    E. 

1,  T  TNDER  title.  Average,  Ihave  made  a  general  diflin61ion  of  the  petty 
^-^    averages,   which  infurers  are   not  anfwerable   for,    from  the   other 

averages,  for  which  they  are  liable. To  the  petty,  or  accii/lomary  average 

(of  which  one  third  is  borne  by  the  fhip,  and  two  thirds  by  the  cargo)  belong 
lodemanagc,  towage,  and  pilotage ;  light-money,  anchorage,  beaconage,  bridge- 
toll,  quarantine,  and  river-charges ;  fignals,  infl;ru£iions,  paflage-money  by 
caflles,  fees  for  failing  orders,  expences  for  digging  a  fiiip  out  of  the  ice,  when 
frozen  up ;  and  all  fuch  difburfements  and  charges  as,  according  to  occur- 
rences, and  the  cuftom  or  nature  of  every  place,  and  the  quality  of  the  fliip 
and  goods,  the  mailer  necelfarily  furnifhes  for  the  benefit  of  the  fhip  and 
cargo,  either  at  the  lading  or  unlading  place,  or  on  the  voyage  : — at  London 
by  cuftom,  Dover  Pier  :  at  Cadiz,  the  heakh-vifits,  and  examinations  into  the 
contents  of  die  (hip's  cargo,  called  there  el  Fondeo,  or  fearching  to  the 
bottom  of  the  fhipi's  hold  I; — in  lieu  of  all  which  different  petty  port  charges, 
it  is  ufual  at  fome  places  to  pay  5  percent,  calculated  on  the  freight,  and  5 
per  cent,  more  for  primage  to  the  captain :  or  at  fueh  Other  rate  as  may  be 
agreed  between  the  owner  and  freighter  • — but  to  any  of  thofe  charges  the 
infurers  have  nothing  to  contribute, — unlefs  when  they  are  extraordinary  or 
unufual,  and  incurred  for  the  exprefs  purpofe  of  relieving  the  fliip  and  cargo 
from  fome  imminent  danger  ;  and  then,  fuch  charges  are  to  be  reputed  and 
borne  as  general  average. 

,2.     See    Average,   Contribution,    Freight,    Ge7ieral.  '.Avirage,    Particular 
Average,   Pilot  and  Pilotage,   Ouarantine. 


PI        L        A        W. 

i.  TF  It  has  been  agreed  on  at  Koningperg,  that  the  goods  fhall  be  put  on 
-■-  board  free  at  Pilaw,  this  fliall  be  extended  no  further  than  that  the 
mailer  of  the  fliip  is  clear  of  all  lading-charges,  and  other  ufual  expenditures, 
betwixt  Koninglberg  and  Pilaw,  the  freighter  alone  being  to  bear  them :  but 
as  to  the  average,  fuch  goods  are  on  the  fame  footing  as  others,  unlefs  it  was 
cxprefsly  agreed  that  the  freighter  fliould  deliver  his  gOods  at  Pilaw,  at  his 

own 


PILOT     AND      PILOTAGE.  ^g^ 

own  rlfque ;  in  which  cafe  the  conncftion  betwixt  them  and  the  fliip  does  not 
commence  'till  the  goods  thus  to  be  brought  on  board,  have  been  cleared  at 

the   cocket-office  of  Pilaw. On  the  other  hand,  a  fhip  being  freighted  for 

Koningfberg,  and  the  goods  to  be  deHvered  in  the  road,  or  at  Pilaw,  the 
connedion  with  regard  to  thefe  goods,   ceafes  upon   their  being  landed  at 

Pilaw,  or  put  on  board  lighters  to  be  forwarded  to  Koninglberg. But  a 

mafler  having  received  goods  to  be  delivered  at  Koningfberg,  and  putting 
them  into  lighters  at  Pilaw,  or  in  the  road,  in  order  to  fend  them  away,  and 
proceed  further  with  the  reft  of  the  lading ;  in  cafe  he  was  not  allowed,  by  a 
particular  claufe  in  the  charter-party,  to  proceed  further,  he  may  be  compelled 
to  give  fufficient  fecurity  in  behalf  of  the  fhip,  for  any  damages  to  be  appre- 
hended, before  her  arrival  at  Koningfberg,  to  the  goods,  and  for  the  average 
occafioned  thereby  :  yet  the  goods  carried  to   Koningfberg,   upon  weighing 

anchor  from  Pilaw,  have  no  concern  with  any  further  danger  of  the  fhip. 

If  a  fliip  hath  received  its  outward-bound  lading  partly  from  Koningfberg, 
partly  from  Dantzick,  Elbing,  or  BraimJI)crg,  and  is  to  take  it  on  board  at 
Pilaw,  the  goods  from  the  laft-mentioned  places  enter  into  no  average  con- 
nexion with  thofe  already  on  board,  or  which  came  from  Koningfberg,  before 
the  fhip  and  the  lighters,  or  other  vehicles,  with  the  goods  from  Dantzick, 
Elbing,  and  Braunfberg,  fhall  be  arrived  at  Pilaw,  and  cleared  at  the  cuflom^ 
houfe  there :  in  cafe  the  fliip  itfelf  goes  from  Pilaw,  and  begins  to  load  at 
Elbing  or  Braunfberg,  there  fhall  likewife  be  no  connc6lion  in  danger  or 
average  betwixt  them  and  the  goods  fhipped  from  Koningfberg,  'till  the  return 

of  the  fiiip  to  Pilaw,  and  it's  legal  clearance  there. -A  (hip,  on  the  contrary, 

bringing  a  cargo  to  Pilaw,  of  which  part  is  configned  to  Koningfberg,  and 
part  to  Dantzick,  Elbing,  or  Braurijbirg,  the  goods  belonging  to  the  latter 
places,  when  pafl  the  Heerd  at  Pilaw,  have  no  longer  any  average  conneftion 
with  the  reft  of  the  cargo,  whether  they  were  brought  in  a  fliip  or  lighters  ; 
likewife  from  the  fame  time  the  fhip  itfelf,  if  going  to  Elbing  or  Braunfberg, 
has  no  further  concern  with  the  goods  delivered  for  KoningftDcrg.  If  the 
{hip  go  to  Koningfberg,  and  the  foreign  goods  after  they  are  out  of  the  fliip, 
remain  at  Pilaw,  their  connexion  alfo  is  at  an  end  upon  the  fliip's  pafhng  tlie 
Meerd. — Ordin.  of  Konivg/b. 

2.     See  Average,   Comntunity,  Contribution,  General  Average,  Ufage. 

PILOT     AND      PILOTAGE. 

1.  TN  many  parts,  where  the  approach  or  entrance  to  harbours,  &c.  are 

A  hazardous  and  difficult,  the  taking  a  pilot  is  not  a  voluntary  aft,  but 

obligatory  on  the  mafter  ;  otherwife,  in  cafe  of  a  lofs,  he  muft  make  it  good. 

— Lex  Merc,  rediv.  122. 

2.     By  Stat.  3  Geo.'i.  c.  13.— If  any  pilot  fliall  negligendy  lofe  the  fliip 
under  his  care,  and  be  thereof  convifted,  he  fliall  for  ever  after  be  incapaci- 
tated 


396  PILOT     AND      PILOTAGE.; 

tated  for  afting  as  a  pilot;  and  die  number  of  fuch  pilots  fliall  not  be  lefs 
than  120,  -w'hofe  names,  ages,  and  places  of  abode,  (hall,  every  25th  of  March, 
be  affixed  in  fome  public  place  at  the  cuRom-houfes  at  London  and  Dover; 
and  for  not  returning  fuch  lid,  the  mafler  and  wardens  of  the  fociety  or 
fellowfhip  of  pilots  of  the  Trinity-Houfc  fliall  forfeit  lol.  &c. — Every  perfon, 
even  the  mafler  of  the  fliip  or  veflel  himfelf,  who  takes  upon  himfelf  to  pilot 
&c.  from  Dover,  Deal,  and  the  Ifle  of  Thanet,  before  being  firfl  examined, 
approved,  and  admitted  into  that  fociety,  incurs  the  like  penalties. — 5  Burr. 
2602  to   2604. 

3.  The  pilot,  who  through  ignorance  ftrands  a  vefTel,  fhall  be  zvhipt,  and 
for  ever  deprived  of  exercihng  his  function  again  :  and  he  who  malicioufly 
runs  a  (hip  afhore,  fhall  fuffer  death,  and  his  corpfe  be  fixed  to  a  mafl  near 
the  place  of  the  wreck. — Ordin.  of  France. 

4.  In  order  to  avoid  all  rifque  of  life,  fhip,  and  cargo,  the  mafler  fhall  be 
obliged  to  take  in  a  pilot  at  all  places  where  it  is  neceffary  and  cuflomary, 
or  failing  fb  to  do,  he  fhall  forfeit  each  time  fifty  gold  rials,  and  make  good, 
befides,  to  the  merchants  all  charges  and  damages,  with  interefl,  fuffered  and 
accrued  by  reafon  thereof. — Ordin.  of  Antw. 

'■■  5.  If  a  mafter  of  a  fhip  being  on  a  dangerous  coafl,  and  where  he  is 
'unacquainted,  is  obliged  for  faving  the  fhip  and  goods  to  pay  an  exorbitant 
pilotage,  amounting  to  above  a  dollar  per  lafl  of  the  burthen  of  the  fliip,  it 
fhall  be  made  good  by  the  fliip  and  goods  as  gro/s  average :  the  ufual 
pilotage  comes  within  common  average. — Ordin.  of  Koningjb, 

6.  If  it  happens  that  the  pilot  runs  the  fhip  afliore,  whether  through 
villainy,  difafler,  inadvertency,  or  imprudence,  the  commifhoners  fliall  take 
cognizance  of  it,  and  ■pwii/Ji  him  according  to  the  exigence  of  the  cafe,  either 
by  fufpenfion,  difcharging,  banifhing,  or  by  a  greater  punifhment,  even  with 
death ;  but  if  it  happens  through  an  extraordinary  cafualty,  as  by  an  unfore- 
i'cQn  mifchance  of  a  fudden  change  of  wind,  or  of  the  current,  or  other  fimilar 
accidents,  the  penalty  fliall  be  moderated  by  the  commiffioners,  as  thev  fhall 
think  jufl;  ordering  to  this  efFeft  the  refpeclive  officers  to  inform  themfelve.s 
exaftly  of  what  has  paffed,  and  to  fend  their  declarations  to  the  commiffioners, 
as  alfo,  if  the  cafe  require  it,  to  feize  the  pilot,  and  proceed  againfl  him, 
according  to  what  he  has  done, — Ordin.  of  HolL 

7.  If  a  pilot  undertakes  the  conduft  of  a  vefl'cJ,  to  bring  her  to  any  port, 
and  fail  of  his  duty  therein,  fo  as  the  veffel  mifcarry  by  reafon  of  his  ignorance 

•■•in  what  he  undertook,  and  the, merchants  fuflain  damage  thereby,  he  ffiall  be 

obliged  to  make  full  fatisfaftion  for  the  fame,  if  he  hath  wherewithal ;  and, 

if  not,  lofc  his  head: — and  if  the  mafler,  or  any  of  his  manners,  or  any  one  of 

Sthe  merchants;  cui<?/f"Au  Am*^,  they  fhall  not  be  bound  to  anfwerforit;  but, 

'•Before  they  do  it,  they  mufl  be  fure  he  had  not  wherewith  to  make  fatisfac- 

^  Vioft. — Laxcs  of  Olcron, 

8.     Remark. 


P  I  R  A  C  Y    A  N  D    P  I  R  A  T  E.  fy^ 

8.  Remark. — The  lofs  of  the  pilot's  head,  if  through  his  ignorance  or 
negligence  the  fhip  is  loft,  is  taken  from  the  Confulato  del  Mare,  c.  247,  and 
anfwers  to  that  known  maxim  in  the  law,  "  Qiii  non  hahet  in  are,  luet  in 

Corpore." If  the  above-mentioned  law  were  in-  force  in  England,  there 

would  be,  annually,  many  heads  of  pilots'  cut  off:  but,  as  the  numerous  and 
heavy  lofles  continually  fuftained  by  the  ignorance,  negligence,  and,  as  there 
is  reafon  to  believe,  roguery  of  pilots  (to  benefit  themfelves  and  their  connec- 
tions on  the  coaft,  .by  recovery  of  anchors,  cables,  &c.  and  pillages  from 
•wrecks)  commonly  fall  on  the  infurers,  it  behoves  thefe  to  exert  themfelves, 
in  order  to  eftablifli  more  fuitable  regulations,  and  to  enforce  proper  punifli- 
ments  in  all  fuch  cafes. — Molloy  and  Malynes  remark,  that  an  unfkilful  pilot 
was  punifhed  (by  the  law  of  Denmark)  by  paffing  thrice  under  the  fliip's  keel. 

9.  See    AJfociation,   Copenhagen,    General  Average,    Mqfter,   Negligence^, 
Petty  Average,  Seamen, 


PIRACY     AND     PIRATE. 

1.  'T^  H  E  crime  of  piracy,  or  robbery  and  depredation  upon  the  high  feas^ 
■*•  is  an  offence  againft  the  univerfal  law  of  fociety ;  a  pirate  being, 
according  to  Sir  Edward  Coke,  "  hoftis  humani  generis :" — as  therefore  he 
has  renounced  all  the  benefits  of  fociety  and  government,  a-nd  has  reduced 
himfelf  afrelh  to  the  favage  ftate  of  nature,  by  declaring  war  againft  all 
mankind,  all  mankind  muft  decla-re  war  againft  him ;  fo  that  every  com- 
munity hath  a  right,  by  the  rule  of  felf-defence,  to  inflict  thait  punifhment 
upon  him,  which  every  individual  would  in  a  flate  of  nature  have  beeil 
othel~Wife  entitled  to  do,  for  any  invafion  of  his  perfon  or  perfonal  property. 

—By   the    ancient  common  la'w,    piracy,    if  committed  by  ztfubjeB,  was 

held  to  be  a  fpecies  of  treafon,  being  contrary  to  his  allegiance ;  and  by  an 
alien  to  be  felony  only  ;  but  now,  finc'e  the  ftatute  of  treafons,  25  Edxo.  3. 
c.  2.  it  is  held  tO'  be  only  felony  in  a  fubjeft :  formerly  it  was  only 
cognizable  by  the  admiralty  courts,  which  proceed  by  the  rules  of  the  civil 
law;  but,  it  being  inconfiftent  with  the  liberties  of  t^e  nation,  that  any  man's 
life  fhould  be  taken  away,  unlefs  by  the  judgment  of  his  peers,  or  the 
common  law  of  thfc  land,  the  Stat.  28  Hen.  S.  c.  15.  eftabliflied  a  new 
jurifdiftioh    for  this  purpofe  ;  which  proceeds'  according  to   the  courfe  of 

the  common  law. The  offence    of  piracy,  by  common  law,    confifts  in 

committing  thofe  afts  of  robbery  and  depredation  upon  the  high  feas,  which, 
if  committed  upoil  land,  would  have  a-mounted  to  felony  there  ;  but,  by 
ftatute,  fome  other  offences  are  made  piracy  alfo ;  as  by  Stat.  1 1  and  1 2 
Will.  3.  c.  7.  if  any  natural  born  fubjeft  commits  any  aft  of  hoftility  upon  the 
high  feas,  againft  other's  of  his  majefty's  fubjefts,  under  colour  of  a  commiffion 
from  any  foreign  power :  this,  though  it  would  only  be  an  aft  of  war  in  an 
alien,  fhall  be  conftrued  piracy  in  a  fubjeft  :  and  further,  any  commander,  or 
other  feafaring  perfon,  betraying  his  truft,  and  running  away  with  any  fhip, 

5  E  boat. 


398  PIRACY     A  N  D     PIRATE. 

boat,  ordnance,  ammunition,  oi^  goods;  or  yielding  them  up  voluntarily  to 
a  pirate  ;  or  confpiring  to  do  thele  ads  ;  or  any  perfon  confining  the  com- 
mander of  a  vefFel,  to  hinder  him  from  fighting  in  defence  of  his  ihip,  or  to 
caufe  a  revolt  on  board ;  (liall,  for  each  of  thefe  offences,  be  adjudged  a 
pirate,  felon,  and  robber,  and  (liall   fuffer  death,   whether    he  be  principal 

or  acceffary. By  the  Stat.  8  Geo.  i.  c.  24;  the  trading  with  known  pirates, 

or  furnilhing  them  with  florcs  or  ammunition,  or  fitting  out  any  vcdel  for 
that  purpofe,  or  in  any  wife  confulting,  combining,  confederating,  or 
correfponding  with  them  ;  or  the  forcibly  boarding  any  merchant  veffel, 
though  without  feizing  or  carrying  her  off,  and  dellroying  or  throwing  any 
of  the  goods  over-board ;  fliall  be  deemed  piracy  :  and  all  accejfaries  to 
piracy,  are  declared  to  be   principal    pirates,  and  felons  without  benefit  of 

clergy. By  the  fame   flatutes  alfo  (to  encourage  the  defence  of  merchant 

veflels  againff  pirates)  the  commanders  or  feamen  wounded,  and  the  widows 
of  fuch  feamen  as  are  flain,  in  any  piratical  engagement,  (hall  be  entitled 
to  a  bounty  to  be  divided  among  them,  not  exceeding  one  fiftieth  part  of  the 
value  of  the  cargo  on  board  :  and  fuch  wounded  feamen  fliall  be  entitled 
to  the  penfion  of  Greenwich  hofpital ;  which  no  other  feamen  are,  except 
only  fuch  as  have  ferved  in  a  fliip  of  war:  and  if  the  commander  fhall  behave 
cowardly,  by  not  defending  the  fliip,  if  flie  carries  guns  or  arms,  or  (hall 
difcharge  the  mariners  from  fighting,  fo  that  the  fliip  falls  into  the  hands  of 
pirates,  fuch  comrnander  fliall  forfeit  all  his  wages,  and  fuffer  fix  months 
iinprifonment. — 4  Black.  Comm.  71,  72. 

2.  There  are  inftances,  where  fuccefs  has  made  a  company  of  pirates 
fo  powerful  as  to  induce  them  to  fettle,  and  form  themfelves  into  a  common- 
wealth ;  it  was  to  this,  that  Algiers,  Tripoli,  and  Tunis,  owe  their  eitablifli- 
jnent,  and  which  they  have  fupported  for  many  years,  though  they  really 
Hill  fubfift  by  their  quondam  profeffion,  or  what  is  very  like  it ;  and  only 
obferve  the  treaties  made  with  them,  fo  long  as  the  rabble  will  permit,  and 

it   fuits  their  conveniency. It  has  been  cufl;omary   to  grant  commiffions 

to  the  commanders  of  Ihips  bound  to  the  Eaft-Indies,  for  the  feizing  of 
pirates. — Since  the  roar  which  commenced  in  1756,  feveral  perfons,  mailers 
of  privateers,  have  been  executed  for  piracy  ;  the  fafts  were,  that  neutral 
fiiips,  Dutch  and  Danes,  were  flripped  in  the  Englifli  channel  by  fmall 
privateers,  and  plundered,  fometimes  by  the  mafters  and  people  of  the 
privateers  difguifed  ;  at  other  times  more  openly  ;  this  occafioned  the  a6l  32 
Geo.  1.  for  puni thing  them. 

3.  A  RANSOM  promifed  to  a  pirate,  is  not  binding  by  the  civil  law, 
therefore  no  wrong  is  created  by  not  complying  with  it ;  and  the  reafon  is, 
that  the  law  of  arms  is  not  communicated  to  fuch,  neither  are  they  capable 
of  enjoying  that  privilege  Avhich  lawful  enemies  may  challenge  in  the 
caption  of  another ;  however,  this  hath  it's  limits ;  for  a  pirate  may  have  a 
lawful  pofl'effion,  which  he  cannot  be  denied  claiming  at  law,  if  injury  or 
wrong  be  done  him,    and  this  is  in  coniequence  of  his  taking  a  legal  courfe, 

for 


PIRACYANDPIRATE.  399 

for  by  that  he  fubmits  to  the  magiflrate,  and  pays  obedience  to  the  laws  in  his 
demanding  juHice. —Molloy. 

4.  Lord  Mansfield  faid,  in  Spain,  Venice,  and  England,  the  goods  go 
to  the  captor  of  a  pirate,  againft  the  owner,  as  there  can  be  no  condemnation 
to  entitle  the  pirate  : — a  capture  by  a  pirate,  or  a  capture  under  a  commijjion, 
where  there  is  no  war,  do  not  change  the  property  ;  yet,  as  between  infurer 
and  infured,  they  are  juft  upon  the  fame  foot  as  the  captures  by  an  enemy. — 
Gqfs  &  Vvitkers. 

5.  For  the  greater  freedom  of  commerce  and  navigation  it  is  agreed 
and  concluded,  that  the  king  of  Great-Britain  and  the  States  General 
fhall  not  receive  into  their  havens,  cities  and  towns,  nor  fuffer  that  any  of 
the  fubjcfts  of  either  party  do  receive  pirates  or  fea-rovers,  or  afford  them  any 
entertainment,  afTiflance  or  provifion,  but  fliall  endeavour  that  the  faid 
pirates  and  fea-rovers,  or  their  partners,  fliarers,  and  abetters,  be  found  out, 
apprehended,  and  fuffer  condign  puniflhment,  for  the  terror  of  others  :  and 
all  the  fhips,  goods  and  commodities  piratically  taken  by  them  and  brought 
into  the  ports  of  either  party,  which  can  be  found  :  nay,  although  they  be 
fold,  fliall  be  rellored  to  the  right  owners,  or  fatisfaftion  fliall  be  given  either 
to  the  owners,  or  to  thofe  who  by  letters  of  attorney  fhall  challenge  the 
fame  ;  provided  the  riglit  of  their  proprietor  be  made  to  appear  in  the  court 
of  admiralty  by  due  proofs  according  to  law. — Treaty  with  Holland,  1667. — ■ 
Treaty  with  France,  1686  and  1713. — Treaty  with  Denmark,  i66g. — Treaty 
with  Turkey,  1675. 

6.  The  fliips  and  effefts  of  our  fubjefts  or  allies  retaken  from  pirates, 
and  reclaimed  within  a  year  and  a  day  from  the  declaration  which  fliall  have 
been  made  of  them  at  the  admiralty,  fhall  be  reflored  to  the  proprietors,  on 
paying  one -third  of  the  value  of  the  fliip  and  goods,  for  charges  of  the 
recapture, — Ordin.  of  France. 

7.  Remark. — What  is  faid  above  (feft.  4.)  by  lord  M.  is  conformable  to 
what  Grotius  mentions,  de  jur.  bell.  &c.  1.  6.  c.  g.  {.  17  and  ig. — and  it 
may  be  added,  that  the  like  ufage  prevails  in  Holland. — Loccenius  iays,  "  ea 
quK  piratai  nobis  eripuerunt,  non  opus  habent  poflliminio,  quia  jus  gentium 
illis  non  concedit,  ut  jus  domini  mutare  poffmt ;"  de  jur.  niarit.  I.  2.  c.  4. 
n.  4.  arg.  leg.  24  and  27.  ff.  de  captivis : — it  feems  however  to  confifl  with 
policy  and  the  public  good  that  the  captors  fliould  be  entitled  to  the  ichole 
of  what  they  take  from  pirates,  to  animate  them  to  brave  the  danger  of 
attacking  them :  but  the  French  authors  extol  the  above-mentioned  article 
of  the  Ordin,  of  1681,  as  "  doing  great  honour  to  their  nation,  fince  it 
fuppofes  in  their  countrymen  an  ardour  of  cruifing  againfl  pirates,  excited 
.rather  by  the  love  of  glory  and  public  good,  than  by  intereft  and  the 
.temptation  of  gain." 

8.     See 


.>i6o 


6       L       I       c 


8.     See  Barbary,  Capture,  Colony,  CommiJJion  of  Marque,  General  Average, 
Mafier,  Ranfom,  Robbery,  Seamen,  Ships  of  War,  Tunis,  Turkey,   War. 


Policy. 

1.  TJOLICY  of  infurance  (from  the  Spanifh  word  poli^a,  and  that  from 
^  the  Latin  pollicitaiio,  a  promife)  is  the  injtrument  by  which  the 
contra6l  bet\Nreen  the  infured  and  infurer  is  effefted  :  it  is  not,  as  almoft  all 
ether  folenin  agreernents  ufually  are,  fubfcribed  by  the  parties  on  each  fide, 
But  by  the  infurer  Only,  whb  is  therefore  emphatically  fliled  the  underwriter ; 
neverthelefs,  there  are,  both  by  law  and  cuftom,  certain  implied  conditicms 
of  this  contra6l,  as  well  as  exprefs  warranties 'often  inferted  in  it,  on  the  part 
of  the  infured ;  for  the  performance  or  fulfilling  of  which  he  is  equally  bound 
"as  if  his  fignature  were  affixed  to  it ;  or  in  faihire  thereof  the  contra6l  is 
rendered  hull  and  void. 

2.  A  POLICY  of  infurance  is  (till  unknown  at  common  law  :-^Lord  Kaims 

Trin.  of  Egu.  i6o. It  is  but  a  parol  contraft ;    and  muft  be  conftrued 

according  to  the  minds  of  the  parties,  and  not  according  to  the  drift  fenfe  of 

the  words — (Jeffries  v.  Legandra): ^Lee,  chief  jufHce,faid-;  ihejlri&um 

jiis,  or  apex  juris,  is  not  to  be  laid  hold  On  in  policies,-  but  they  are  to  be 

conftrued  largely  for  the  benefit  of  trade — (Tierney  v.  Etherington) : 

!Pemberton,  juftice,  faid ;  policies  are  facred  things,  and  a  merchant  fhould 
no  more  be  allowed  to  go  from  what  he  had  fubfcribed  in  them,  than  he  that 

fubfcribes  a  bill  of  exchange  payable  at  fuch  a  day,  &c. — (Skin.  54.J: 

but  being  contrafh,  the  v^ery  efierice  of  which  coi'ififts  in  obferving  the  purejt 
good  faith  and  integrity,  they  are  vacated  by  any  the  leaft  (hadow  o^  fraud 
or  undue  concealfnent :  tm'd,  ori  the  other  hand,  being  much  for  the  benefit 
and  extenfion  of  trade,  they  are  greatly  encouraged  and  protefted  both  by 
common  law,  and  afts  of  parliament : — 2  Black.  Comm.  461. Lord  Mans- 
field faid ;  in  queftions  upon  policies,  the  nature  of  the  contraft,  as  an 
indemhily,  and  nothing  elfe,  is  always  liberally  confidered. — Gofs  &  Withers. 

3,  In  every  maritime  place  where  ft  is  uTuaT  lo  infure,  there  are  printed 
forms  6f  policies  according  to   the   objeft   of  the  infurance,  in  which  the 

common  circumll^h'ces  and  claufes,  and  the  general  perils  which  the  infurers 
take  upon  them,  are  enumerated,  and  blanks  left  to  infert  in  writing  the 
requifite  particulars  of  each  infuranct>,  as  alfo  fuch  exprefs  warranties,  or 
feparate  conditions  and  extraordinary  claufes  as  may  be  agreed  on : — almoft 
every  country  has  it's  particular  forfns  of  policies ;  and  fuch  is  the  variety  of 
the  matters  and  occafions  which  different  perfons  have  to  infure,  that  it  would 
ue  difficult  to  frame  a  ftandard  policy,  or  fo  many  difiintt  forms  of  policies, 
even  for  ffiips  and  merchandifes  only,  as  might  exa6tly  fuit  every  country, 
much  lefs  every  cafe  that  might  occur. — With  regard  to  infurances  on  lives, 
fire,  and  fundry  other  events,  we,  in  England,  frequently  make  ufe  of  policies 

written 


1 


O        L        I        C        Y. 


401 


written  throughout,  exprefTing  all  the  circumftances  and  claufes  according  to 
the  minds  of  the  parties. 

4.  The  particulars  of  a  policy  of  infurance  being  therefore  fo  variable, 
it  is  not  eafy  to  defcribe  precifely  the  ejfentials  of  this  inflrument :  they  are 
however,  in  general,  as  follows,  viz. —  1.  the  perfon's  name  for  whom  the 
infurance  is  made,  with  a  declaration  of  it's  being  for  and  in  the  names  of 
whomfoever  the  property  infured  may  belong  to  : — 2.  the  names  of  the  (hip 
and  mailer: — 3.  whether  they  be  goods,  merchandifes,  etfefts,  or  whatever 
elfe,  upon  which  the  infurance  is  made : — 4.  the  name  of  the  place  where  the 
goods  are  laden,  whither  bound,  and  where  the  fhip  may  touch : — 5.  the 
time  when  the  rifque  begins,  and  As'hen  it  ends  : — 6.  all  the  different  kinds  of 
dangers,  which  the  infurer  takes  upon  him  : — 7.  the  confideration,  or  premium 
(which  in  England  mull  be  expreffed  to  be  received) : — 8.  the  day,  month, 
and  year,  the  policy  is  figned  by  each  infurer: — and  g.  all  other  claufes  and 
conditions  on  which  the  parties  particularly  agree. 

5.  Policies  having  been  filled  up  in  fuch  various  terms,  and  fuch 
imexampled  exprefTions  inferted,  according  to  the  different  conceptions, 
fancies,  or  exigencies,  and  fometimes  mental  refervations,  of  the  infured,  it 
has  naturally  occafioned  many  difputes,  and  confequently  brought  on,  in  the 
courfe  of  a  few  years  part,  the  moll  remarkable  trials  that  ever  employed  our 
courts  on  fubjefts  of  infurance,  as  will  appear  in  this  work,  by  references  to 
them  from  title,  Cqfcs  Adjudged. 

6.  The  printed  form  of  policies  for  fliips  and  merchandifes  at  prefent  in 
ufe  in  England,  varies  but  little  from  that  which  was  originally  brought  from 
abroad,  and  was  common  here  above  200  years  ago,  as  appears  in  Malynes's 

Lex  Merc.  c.  25,   and   Molloy,  De  Jur.  Marit.  b.  2.  c.  7. This  form  is, 

however  (as  Lord  Mansfield  obferved,  in  the  cafe  of  Wilfon  &  al.  v.  Smith. 
3  Burr.  1550.)  "  very  irregular  and  confufed  ;  an  ambiguity  arifes  in  them 
from  their  ufing  words  in  different  fenfes ;  particularly  in  the  ufe  of  the  word, 
average  :  it  is  ufed  to  fignify  a  contribution  to  a  general  lofs  ;  and  it  is  ufed 

to  fignify  a  particular  lofs." In  fhort,  the  true  fenfe  of  the  feveral  terms, 

and  expreffions  or  claufes  in  our  printed  policies,  can  be  underftood  only 
from  experience,  and  a  knowledge  of  the  precife  conJlruBion  that  has  been 
made  of  them  by  long  ufage  ;  and  which,  as  well  as  the  diftinft  obligations 
and  duties  of  the  parties  to  this  contraft,  in  all  the  various  matters  to  which 
it  relates,  are  amply  fet  forth,  under  the  refpeftive  titles  throughout  this 
work. 

7.  By  Stat.  11  Geo.  1.  c.  30.  f.  44. — When  any  vefl'el  or  merchandifes  (hall 
be  infured,  a  policy  duly  (lamped  fliall  be  iffued  or  made  out  within  three  days 
at  furthefl ;  and  the  infurer  ncglefting  to  make  out  fuch  policy,  fhall  forfeit 
lool. : — and  all  promijfory  notes  for  fuch  afiurances  are  void. 

5  F  8.     Policies 


402 


O        L        I        C        Y. 


8.  Policies  of  infurance  that  are  not  regijlcred,  (hall  be  of  no  validity, 
nor  may  the  infured  avail  himfelf  thereof,  let  the  misfortune  or  accident  that 
has  happened  be  what  it  will. — Ordin.  of  Flor. 

g.  In  the  policy  fhall  be  fpecified  the  time  when  the  fliip  is  to  fail,  or 
actually  did  fail. — Ordi^i.  of  Stpckh. 

ID.  The  policy  fliall  contain  the  name,  and  the  place  of  refidence  of  the 
perfon  who  has  the  infurance  made  ;  his  quality,  as  proprietor  or  faftor ;  the 
effecls  whereon  the  infurance  fliall  be  made ;  the  name  of  the  veffel  and  the 
mailer ;  that  of  the  place  where  the  goods  have  been,  or  fliall  be  laden  ;  the 
port  whence  the  fliip  fhall  depart,  or  is  departed ;  thofe  where  fhe  fhall  load, 
and  unload ;  and  all  thofe  where  fhe  may  touch  at ;  when  the  rifque  fhall 
begin ;  when  end ;  the  fum  intended  to  be  infured  ;  the  premium,  or  coft  of 
the  infurance  ;  the  fubmiffion  of  the  parties  to  arbitration  in  cafe  of  difpute  ; 
and  generally  all  the  other  conditions  which  they  fhall  intend  to  agree  upon. 

-.... ./.....  ....         I 

II.     Remarks. — All  that  is  expreffed  in  the  afore-mentioned  article  of        ■ 
the  French  ordinance  of  1681,  was  obferved  long  before  that  time,  and  only 
gives  the  force  of  law  to  ancient  ufage ;    as  appears  from  the  Guidon,  c.  2. 

Stypmannus,  ad  jus  mar.  par.  4.   Kuricke,  diatriba  de  allec.   fol.  833. 

Another  article  of  the  fame  ordinance  prefcribes  that  '•'  the  policy  fhall  be 
drawn  up  in  writing,  and  may  be  executed  as  a  private  deed." — It  had  long  been 
of  acknowledged  utility  in  every  place  where  it  hath  been  ufual  to  make 
infurances,  to  have  printed  forms  of  policies,  containing  the  moft  cuflomary 
claufes,  with  blanks  to  infert  particular  circumftances,  and  extraordinary 
conditions ;  but  the  Parifians  having,  fome  years  ago,  got  into  the  pra6lice 
of  infuring,  and  feveral  of  them  underftanding  but  little  of  the  matter,  they 
cavilled  fometimes  againfl  one  claufe,  fometimes  another ;  here  under  pretext 
of  ambiguity  in  the  terms,  there  becaufe  fuch  or  fuch  a  claufe  was  not  in 
writing;  fo  that  at  laft  the  ufe  of  every  printed  form  of  policies  of  infurance 
was  rejefted,  notwithftanding  their  evident  utility  in  facilitating  the  expedition 
of  the  bufinefs.  It  is,  however,  to  be  wifhed,  that  all  the  moft  general  claufes, 
conditions,  and  terms,  were  comprifed  in  a  well  digefted  ftanding  printed 
form  ;  fince  it  is  cliiefly  from  the  hafty  and  inconfiderate  infertion  of  novel 
and  extraordinary  tcritten  claufes,  inaccurately,  vaguely,  and  often  artfully 
exprelled,  that  the  greateft  danger  of  furprife,  and  confequently  difpute,  is 
to  be  apprehended : — and  there  is  no  doubt  but  a  form  of  policy,  better 
adapted  than  any  of  thofe  which  are  now  any  where  ufed,  might  be  compofed, 
for  the  benefit  of  the  commercial  world  in  general. 

12.     Policy,  on  flip  and  goods,  made  ufe  of  in  London. 

TN  the  name  of  God,  Aineii,  as  well  in 

■*■  own  name,  a%  for  and  in  the  name  and  names  of  all  and  every  other  per/on  or  perfons  to  whom 

the  fame  doth,  may,  or  fall  appertain,  in  part  or  in  all,  doth  tnakc  afurance,  and  caufe 


POLICY.  403 

and  them,  and  every  of  them,  to  he  injured,  lojl  or  not  lojl,  at  and  from 

upon  any  kind  of  goods  andmerchandifes,  and  alfo  upon  the  body,  tackle,  apparel,  ordnance,  munition, 
artillery,  boat,  and  other  furniture,  of  and  in  the  goodfhip  or  veffd  called  the 
whereof  is  ma/ler,  under  God,  for  this  prefent  voyage,  or  vjhoever  elfe 

fliall  go  for  majler  in  the  faidfhip ,  or  by  whatfoever  other  name  or  names  the  fame  flip,  or  the 
mafcr  tliereof  ,  is  or  fiall  be  named  or  called ;  beginning  the  adventure  upon  the /aid  goods  and 
merchandifcs  from  tJie  loading  thereof  on  board  the  faidfhip,  upon  thefaid 

fhip,  &c.  and fo flail  continue  and  endure,  during  her 

abode  there,  upon  the  faidfhip,  &c.  And  further,  until  the  faid  flip,  with  all  her  ordnance,  tackle, 
apparel,  &c.  and  goods  and  merchandifes  whatfoever  f  tall  be  arrived  at 

upon  the  faidfhip,  &c.  until  fie  hath  moored  at  anchor  tii'entyfour  hours  in  goodfafety ;  and  upon 
the  goods  and  merchandifes,  until  the  fame  be  there  difcharged  andfofely  landed..  And  it  fall  be 
lawful  for  the  faid  flip,  (3c.  in  this  voyage,  to  proceed  and  fail  to,  and  touch  and  fay  at  any  ports  of 
places  whatfoever 

■without  prejudice  to  this  infurance.  The  faid  flip,  &?c.  goods  and  merchandifes,  &c.  forfo  much 
as  concerns  the  affureds,  by  agreement  between  the  affureds  and  affuren  in  this  policy  are  andfiall 
be  valued  at 

Touching  the  adventures  and  perils  which  we  the  affurers  are  contented  to  bear,  and  do  take 
upon  us  in  this  voyage ;  they  are,  of  the  feas,  men  of  war,   fire,  enemies,  pirates,  rovers, 
thieves,  jettifons,    letters  of  mart,    and  counter  mart,    furprifals,    takings  at  fea,    arrefts, 
reftraints  and  detainments  of  all  kings,  princes,  and  people,   of  what  nation,   condition,  or 
quality  foever ;    barratry  of  the  mafter  and  mariners,   and  of  all   other  perils,   lofles,   and 
misfortunes  that  have  or  fhall  come  to  the  hurt,  detriment,  or  damage  of  the  faid  goods, 
and  merchandifes,  and  fliip,  &c.  or  any  part  thereof.     And  in  cafe  of  any  lofs  or  misfor- 
tune, it  fhall  be  lawful  to  the  afliireds,  their  faflors,  fervants,  and  afiigns,  to  fue,  labour,  and 
travel  for,  in  and  about  the  defence,   fafeguard,   and  recovery  of  the   faid  goods   and 
merchandifes,  and  fhip,  &c.  or  any  part  thereof,  without  prejudice  to  this  infurance;  to  the 
charges  whereof  we  the  aiTurers  will  contribute  each  one  according  to  the  rate  and  quantity 
of  his  fum  herein  alTured.     And  it  is  agreed  by  us  the  infurers,  that  this  writing  or  policy 
of  affurance  fhall  be  of  as  much  force  and  effeft  as  the  fureft  writing  or  policy  of  affurance 
heretofore  made  in  Lombard-Street,  or  in  the  Royal-Exchange,  or  elfewhere  in  London.     And 
fo  we  the  affurers  are  contented,   and  do  hereby  promife  and  bind  ourfelves,  each  one  for 
his  own  part,  our  heirs,  executors,   and  goods,  to  the  affureds,  their  executors,  adininiftra- 
tors,  and  afligns,  for  the  true  performance  of  the  premifes,   confefTing  ourfelves  paid  the 
confideration  due  unto  us  for  this  affurance,   by  the  affured,    at  and  after  the  rate  of 

per  cent. 
In  witnefs  whereof,  we  the  afjurers  have fuhfcribcd  onr  names  andfums  affured  in  London. 

N.  B.     Corn,  fifli,  fait,  fruit,  flour,  and  feed,  are  warranted  free  from  average,  unlefs  general,  or  the 

(hip  be  flranded. Sugar,  tobacco,  hemp,  flax,   hides,  and  fkins,  are  warranted  free  from  average, 

under  five  pounds  per  cent,   and  all  other  goods,  alfo  the  Ihip  and  freight  are  warranted  free  of  average, 
under  three  pounds  per  cent,  unlefs  general,  or  the  Ihip  be  ftranded. 

13.     The  form  of  our  policy  on  flip  only,  and  of  that  on  goods  only, 
differ  from  the  foregoing  merely  in  omitting  what  particularly    relates  to 

each. The  incorporated   companies   of  the    London- AJJurance,   and   the 

Royal-Exchange-Affurance,  ufe  the  fame  form  of  policies  as  the  private  under- 
writers, except  that  the  companies  leave  out,  ever  fmce  the  cafe  of  CantiUon 
V.  Land.  Aff.  Co.  in  the  year  1754  (fee  p.  147)  the  words   of  the  N.  B.  at 
.  the 


404  PRECEDENT. 

the  foot  of  their  poUcies  on  goods,  viz,  "or  tkejliip  bejlranded,"  and  fo  fubmit 
to  pay  only  general  averages  and  total  lolles  on  the  firfl  fix  articles  of 
merchandifes  there  mentioned. 

14.  For  the  forms  of  policies  ufed  at  the  principal  maritime  places 
abroad,  fee  under  the  titles,  or  names  of  thofe  refpeftive  places,  as  Amjlerdam, 
Bilboa,  Cadiz,  Copenhagen,  Hamburgh,  Leghorn,  Rouen,  Stockholm,  &c. : — fee 
alfo  Fire,  Lives,  for  the  forms  of  policies  thereupon. 

15.  See  Prelim.  Difc.  10,  27,  52,  58,  66.  Adjibjiment,  Alteration  of  Policy 
Voyage  or  Rifque,  Affignment,  Bail,  Bargain,  Blank,  Bottomry,  Broker,  Com- 
mencement of  Voyage  or  Rifque,  ConJlruUion,  Contrail,  Corn,  Court  of  Policies 
of  Ajfurance,  End  of  Voyage  or  Rifque,  Infurance,  Litendment,  Mijlake,  Name, 
Parol  Agree77ient,  Privateer,  Regijler,  Rifque,  Stamps,  Wager,  Written  Claufe. 

PRECEDENT. 

1,  "PRECEDENTS  of  courts,  as  well  as  laws,   are  built  upon  reafon  and 
-*-      juftice,  and  "  tantum  habent  de  lege  quantum  habent  de  juftitia."— ^ 

Hob.  270. Precedents  which  pafs  without  challenge  of  the  party  or  debate 

of  the  jullices    are    not   regarded  as    law. — 4   Rep.   94. Precedents,   in 

oppofition  to  principles  ought  to  have  little  weight. — No  precedents  will 
fupport   cither   natural    injuflice    or  violation  of  pofitive  right. — Letters  of 

Junius. Lord  Chancellor  Talbot  faid,  he  thought  ir  much  better  to  flick 

to  the  known  _^6'ncrfl/ rules  of  law,  than  to  follow  any  one  particular  precedent 
which  may  be  founded  on  reafons  unknown  to  us  ;  fuch  a  proceeding  would 
confound  all  property. — Cafes  in  Equ.  Temp.  Lord  Talbot,   26,  27. 

2.  Vaughan,  C.  J.  in  the  cafe  of  Fry  &  Porter,  faid,  he  wondered  to 
hear  of  citing  of  precedents  in  matters  of  equity,  for  if  there  be  equity  in  a 
cafe,.that  equity  is  an  univerfal  truth,  and  there  can  be  no  precedent  in  it; 
fo  that  in  any  precedent  that  can  be  produced,  if  it  be  the  fame  with  this  cafe, 
the  reafon  and  equity  is  the  fame  in  itfelf ;  and  if  the  precedent  be  not  the 
fame  with  this  cafe,  it  is  not  to  be  cited,  being  not  to  that  purpofe. — But 
Bridgeman,  lord-keeper  faid,  certainly  precedents  are  very  neceflary  and 
ufeful  to  us,  for  in  them  we  find  the  reafon  of  the  equity  to  guide  us  ;  and, 
bcfides,  the  authority  of  thofe  who  made  them  is  much  to  be  regarded  :  we 
Ihall  fuppofe  they  did  it  upon  great  confideration,  and  weighing  of  the  matter, 
and  it  would  be  very  firange  and  very  ill  if  we  (hould  difturb  and  fet  afide 
what  has  been  the  courfe  for  a  longfcries  of  time  and  ages. — Mod.  307. 

.     3.>-.  As  it  happens  often,  that  upon  the  fame  fa6l  one  judge  judges  one 

-wayy  and  another  another,  fo  it  is  to  be  feen  too,  that  the  very  fame  men  do 

-determine  the    lame   faft  at  divers  times  diverfly  ;    for  indeed  the  judgment 

of  men  may  wax  perfefter  by  age,  fl;udy,  and  experience,  than  they  were 

when  they  gave  their  firft  judgment ;   and  thofe  that  do  fucceed,  may  be  by 

many 


PRECEDENT. 


405 


many  degrees  more  eminent  in  wifdom,   reafon,  knowledge,  and  experience, 
than   thofe   that  fat    in    the   fame   tribunals  before   them : — fometimes   the 
greater  part  weighs  down  the  better :   where  many  judges  are  to  pronounce 
judgment,  and  fome  one   or  two  of  them  be  eminently  qualified  above  all 
the   reft,  that  which  the  greater  number  concurs  in  only   mufl  prevail  and 
take  effeft  :  but  if  the  wifeft  be  diffenters,   there  is  more  of  number  than  of 
weight  or  knowledge  in   fuch  a  fentence ; — fometimes  he,   in  whofe  favour 
fentence  is  given,   carries  it  but  by  one  vote  more  than  he  againft  whom  it 
pafteth  :   fometimes  fome  one  of  the  judges  being  more  renowned,  or  haply 
more   eloquent  than  his   fellows,  does  either  through  his  greatnefs,  fpeech, 
dexterity,  or  wit,  draw  all  the  reft  into  error  by  his  too  powerful  interpofmg  : 
but  the   danger  of  palling  wrong  and  erroneous  judgment  is  greater,  where 
the  office   and  power  of  judging  refts  in  one  fmgle  perfon  only  :   it  is  too 
common  alfo,  that   the   wrong   caufe    is    followed   with   exafteft   diligence, 
ftrengthened  with  the  patronage  of  the  moft  and  beft  advocates,  the  one  fide 
too  bold  and  preffing,  the  other  too  modeft  and  badiful,  ftiewing  a  kind  of 
guilt  in  bluflies. — Thefe  are   the  difficulties  and  temptations  which  all  courts 
of  juftice   have    to  contend    withall,  under  which  they  may  more  eafily  fall, 
than  withftand  and   vanquifti  them  :    the  judgments  therefore  and  fentences 
which  they  deliver,   though   we  muft  acquiefce  in  and  fit  down  by  them,  as 
to  fuch  cafes   which  the  fame    are  purpofely  given  for  to  decide,  and  as  to 
fuch  perfons    that  are  mentioned  or  concerned  therein  (for  elfe  there  would 
be  no  end  of  controverfies,   nor  no  man's  right  would  be  ever  certain ;    and 
therefore  the  civil  law  fays,   that  a  judge  is  laid  to  minifter  right,  even  when 
he  decrees  unjuft  things,  and  a  fentence  is  taken,  and  ftands  for  truth)  ;  yet 
there  is  nothing  either  of  equity  or  reafon  to  make  them  fo  authoritative  and 
powerful,  as   that  they  ffiould  be  drawn   into  example  for  the  future,  and  be 
made  patterns  to  determine  other,   though  never  fo  like,  cafes,  by  ;   fince  the 
ways   and  means  of  obtaining  them  may  not  be  fair,  and  their  integrity  and 
foundnefs  be  queftionable. — There   is  fcarce   any    caufe  that  fuits  or  agrees 
with  another  in  all  circumftances  :   in  fo  many  ages,  and  in  fuch  a  multitude 
of  cafes  that  have  occurred,  there  has  not  been  found  one  wholly  like  another; 
there    is   fuch    a  ftrange    and  wonderful    variety,  that  nothing  is  afted,    or 
produced   or  happens  like  another,  but  that   there  is   fome  circumftance  or 
other  that  does  diverfify  it  and  make  it  differ : — when  therefore  cafes  are 
either  wholly  diverfe  and  differing,  though  in  never  fo  fmall  a  circumftance, 
their  determinations  cannot  be  the  fame  ;    for  diverjity  of  fa6ls  muft   needs 
■beget  a  diverjity  of  law  too  ;  and  a  very  fmall  circumftance  will  change  and 
alter  the  ftate  of  any  bufinefs,  and  require  clean  another  judgment  than  can 
be  had  from  cafes  that  do  not  exaftly  parallel  them  in  all  things :  and  this  has 
made  all  lawyers  to  agree,  that,  an  argument  drawn  from  a  like  cafe  is  very  weak 
and  impotent,  and  falls  to  the  ground  when  the  leaft  di/Jimilitude  is  found. — ■ 
Upon  thefe  and  fuch  like  confiderations  is  it,  that  the  civil  law  does  fo  frequent- 
ly exprefs  itfelf  in  difallowance  of  judging  by  precedent   or   example,    and 
direfts  judges  to  rcfleft  only  upon  that  which  truth  and  laxo  will  bear,  and 
not  upon  any  thing  that  has  been  done  by  others :    for  if  a  cafe  has  been 

r^  G  once 


4o6  P      R      E      M      I      U      M. 

once  determined  afnifs,  this  ftiould  not  fpread  to  the  corrupting  of  other 
judges,  fince  we  ought  to  judge  by  tlie  law  and  not  by  example.:  and 
therefore  the  praclicants  allow  not  any  fuch  plea  in  the  court,  as  to  fay, 
that  the  cafe  hath  been  judged,  except  there  be  a  concurrence  of  all  thefe 
three  things  together;  to  wit,  that  the  caufe  and  procefs  bcihejavie,  the 
right  of  aftion  the  fame,  and  the  perfons  thQja)7ie  too :  upon  one  and  the 
fame  fa6l,  contrary  fentences  may  be  given  by-feveral  judges,  between  other 
perfons,  at  feveral  times:  and  again,  it  is  not  the  part  of  ajufl;  judge  to 
judge  as  others  have  do^e,  but  as  they  all  ought  to  do.  Thus  then,  fmce 
we  require  that  reafon  and  natural  equity  fhould  be  ftrong  and  vigorous  both 
in  law  and  cultom,  or  at  leaft  by  no  means  repugnant  to  them,  wlien  they 
come  to  judge  us ;  and  that  we  fee  all  manner  of  reafon  to  Hand  againll 
judging  by  precedents  or  foregoing  judgments;  befides  the  univerfal  law 
and  pra6tice  of  nations;  we  conclude  that  the  way  of  judging  by  precedents, 
is  9S  erroneous  a  guide  to  walk  by,  and  as  little  fatisfaftory  to  the  people, 
as  a  law  or  cullora  that  is  void  of  all  equity  and  reafgn,  and  therefore  by  no 
means  to  be  entertained  or  admitted. — And  yet  we  muft  allow,  that  cafes 
fon/iantly  judged  one  way  for  a  long  tra6l  of  time  together,  do  fet  a  rule  to 
fuch  as  fliall  fucceed  :  the  judging  of  the  fame  thing  always  in  one  and  the 
fame  manner,  is  tlie  befl  help  to  underftand  both  law  and  cuflom  by :  but 
then,  it  muft  not  be  once,  or  twice,  or  thrice  judged  fo,  but  the  judgments 
mull  be  many,  as  well  as  alike ;  and  it  muft  hold  on  fo  for  a  long  time 
together,  before  it  can  have  the  force  and  effe6l  of  a  law  ;  and  after  it  has 
lb  long  prevailed,  it  may  be  efteemed  not  fo  much  law,  as  reafon ;  for 
certainly  it  could  not  have  fo  long  endured,  if  the  reafon  of  it  had  not  been 
evident  to  thofe,  whofe  judgments  were  fo  conformable  as  never  to  difagree 
therein. — Sir  Robert  Wifemans  Law  of  Laws,  64. 

.f|.7,LoR.D  Mansfield  faid ; — as  in  all  mercantile  tranfaftions  I  have  held 
certainty  of  greater  confequence  than  perhaps  upon  what  rule  originally 
the  cafe  was  decided,  I  think  general  verdids  are  not  to  be  regarded,  as 
certainty  is  never  to  be  had  from  them,  it  not  appearing  on  what  grounds 
the  jury  found  :  and,  in  general,  notes  of  cafes  taken  at  Nifi  Prius,  though 
ever  fo  well  taken,  and  decided  by  judges  of  ever  fo  high  authority,  are 
liable  to  the  fame  objeflion,  for  fimilar  reafons. — Loft,  631. — Valiejo  & 
Echalaz  v.  Wheeler. 

5.     Ske  Prelim.  Difc.  15  to  20,  84.  Barratry,  Cafes  Adjudged,   Court  Mer- 
chant,   Ciijiom,  Injufjiciency,    Ufage,  Verdict. 


P         R         E         M         I         U         M. 

1.  TJREMIUM  is  the  confideration  which  the  infurer  receives  for  under- 
■^     taking  the  rifque  ;    and  is  what  binds  him  to  anfwer  for   all  fuch 

damages 


RE        M        I        U        M. 


407: 


damages  and  loffes    as    are    comprehended   In   the    policy. It   is    called 

premium,  becaufe  of  right  it  ought  to  be  paid  before  hand  ;  and,  therefore, 
in  our  policies,  thefe  words  are  inferted  (as  a  confideration  precedent)  viz. 
"  confeflfing  ourfelves  paid  the  confideration  due  unto  us  for  this  affurance, 
by  the  alfured :" — ^but,  in  France,  it  is  in  general  paid  only  on  the  arrival  of 
the  fhip,  or  after  it  is  gained  by  the  determination  of  the  rifque :  however  in 
fome  maritime  places,  as  Rouen  and  Marfeilles,  unlefs  there  be  a  ftipulation 
to  the  contrary,  the  premium  is  paid  immediately,  either  in  money  or  notes, 
called  billets  de  prime :  at  Rouen  this  cuftom  is  very  ancient,  as  appears  by 
the  Guidon,  c.  15.  art.  16. 

2.  In  England,  the  payment  or  non-payment  of  a  premium  before  the 
lofs  happens,  makes  no  alteration  in  an  infurance,  according  to  the  prefent 
cuftom,  as  the  infurers  may  infilt  upon  being  fatisfied  at  the  time  of  their 
underwriting,  if  they  do  not  incline  to  give  credit  for  it :  and  when  an  infurer 
underwrites  policies  to  brokers  and  office-keepers,  they  only  (not  the  infured) 
are  debtors  to  him  for  the  premium. 

3.  Whatever  may  happen  to  the  thing  infured,  the  premium  is  always 
an  acquifition  to  the  alfurer;  which  he  is  entitled  to  hold,  without  any 
return,  as  foon  as  he  has  begun  to  run  a  rifque ;  although  it  may  not  have 
long  continued,  but  may  have  been  fhortened  through  an  alteration  of  the 
courfe,  the  voyage,  or  the  velfel,  by  the  fault,  order,  or  means  of  the  affured, 
their  agents,  fatitors,  or  captains,  without  the  confent  of  the  infurers  : — but  as 
thefe  are  not  anfwerable  in  cafe  of  lofs,  for  the  payment  of  the  fum  infured 
beyond  the  value  of  the  efPecls  or  intereft,  neither  can  they  retain  the  premium, 
unlefs  in  proportion  to  fuch  value  or  intereft  ^s  was  adually  in  rifque  ;  but 
for  all  that  was  not,  the  premium  muft  be  returned  by  the  infurers  to  the 
infured,  except  an  half  per  cent,  which  they  are  entitled,  by  ancient  cuftom, 
to  keep,  on  fuch  fum  as  the  intereft  covered  in  rifque,  appears  to  be  Jlw7t  of 
the  fum  infured. 

4.  The  rate  of  premium  depends  entirely  upon  the  agreement  of  the 
parties,  according  to  the  nature  and  degree  of  the  rifque : — but  if  what  the 
infured  paid  was  confiderably  more  than  a  common  premium,  it  implies  that 
there  were  reafons  for  giving  more,  and  an  infurer  by  accepting  it,  tacitly 
admits  it  to  be  a  fufficicnt  confideration  for  an  extra  rifque  ;  therefore,  in  fuch 
cafe,  allegations  of  concealments,  &c.  would  come  from  him  but  with  an  ill 
grace,  and  could  be  of  no  great  weight  againft  the  infured. 

5.  I  INSERT  here,  as  matter  of  fome  curiofity,  the  following  table  of 
premiums  per  cent,  paid  at  London  in  the  time  of  Maly?ies,  in  1620,  accord- 
ing to  his  Lex  Merc.  108,  compared  with  thofe  paid  for  the  fame  voyages, 
before  the  prefent  war,  viz. 

In 


4o8 


R 


M 


U       M. 


Xnihevear 

1620. 

3 

3 

4 

5 

5 

6 

a 

7 

8 

a 

9 

10 

9 

15 

a 

20 

Middlcburgi  Rotterdam^  Rouen,  Edinburgh 
Hamburgh       --------- 

Bourdeaiix,  Rochelle,  Lubeck,   Copenhagen 

Lijbon,  Bifcay,  Ireland 

Dantzick,  Riga,  Revel,  Sweden  -  -  - 
Cadiz,  Gibraltar,  Malaga  -  -  .  - 
Livorno,  Civita  Vecchia  ----- 
Venice         ---------- 

Archangel       - 

Eajl-Lidies,  out  and  home         -     -     -     - 


In   the  year  1773. 
In  Summer, 


1 

1  a 

li 

li 

1  a 

li 

li 

li 

I2 

li 

li 

a  2 

8 

Winter. 

li  a  li 


a  2 

a  2 


d^  1: 


2t  ^  5 


It   a    1^ 


3^5 
8 


which  fhews  that  the  infuring  bufinefs  mufl  have  been  very  lucrative  in  thofe 
times :  what  profit  it  leaves  at  prefent,  I  (hall  not  pretend  to  determine ; 
however,  an  infurer  who  knows  how  to  diftinguifii  properly  between  good  and 
bad  connexions  and  adventures,  and  is  well  acquainted  with  this  bufinefs, 
may  fiiU  get  money  by  it  (barring  deceit,  impofition,  and  fraud).  The  danger 
from  the  Turks  and  Moors  mufl;  certainly  have  been  very  great  in  1620,  to 
raife  the  premiums  on  voyages  to  Portugal,  Spain,  and  the  Levant,  fo  high  as 
thofe  above-mentioned  ;  but  as  at  prefent  our  commerce  continues  unmolefted 
by  them,  the  fea  rifque  is  confequently  fmall ;  befides  that  our  trade,  naviga- 
tion, and  fliip-building  have  been  conftantly  improving  ever  fince  the  pafiing 
of  our  important  and  famous  a6l  of  navigation,  12  Car.  2. 

6.  It  is,  in  general,  underflood  that  the  infurers  run  all  rifques,  either  in 
winter  or  fummer,  if  no  certain  time  for  departing  be  exprelfed  in  the  policy  : 
however  infurers,  who  aft  with  circumfpeftion,  ufually  guard  againfl;  extra- 
ordinary hazards  of  the  winter  feafon,  by  proper  explanations  in  the  policy : 
as  in  the  infurances  on  fhips  from  Peterfburg,  where  different,  or  conditional 
premiums  are  inferted,  according  to  their  failing  late  or  early  ;  fo  that  from 
:^  to  3  or  more  per  cent,  is  agreed  to  be  returned,  according  to  the  time  of 
the  fhip's  departure :  fo  likewife  on  adventures  expefted  from  the  Leeward- 
Iflands  and  Jamaica,  a  confiderable  difference  is  made  in  the  premium,  if 
warranted  to  fail  on  or  before  the  26th  of  July,  which  of  late  is  often  extended 
to  the  ift  of  Auguft  ;  or  a  flipulation  to  return  a  correfpondent  part  of  the 
large  premium  given,  in  cafe  the  fhip  departs  on  or  before  fuch  limited  day : 
the  like  is  alfo  pra6lifed  with  regard  to  vovages  from  America. 

■.n\n  ■ 

7.  The  infured  may  include  in  the  infurance,  as  a  part  of  the  intereft,  not 
only  tliQ  premium,  but  the  premiums  of  the  premium,  ad  infinitum,  till  all 
premiums  are  abforbed^  even  to  the  fmallcft  fraftion : — it  is  common,  in 
France,  to  infert  in  the  policy  the  following  claufe,  or  terms  equivalent,  viz. 
"  vous  affurons  votre  entier  capital,  fans  aucune  deduftion,  &  vous  permettons 
de  faire  affurer  la  prime  &  Ics  primes  de  prime." — In  this  manner,  for  infiance, 
(according  to  the  rule  which  I  have  inferted  and  explained  under  title,  IntercJI) 

the 


P    R    I    O    R    -    I    N    S    U    R    A    N    C    E.  409 

the  premiums  of  the  premium  upon  a  fum  of 3,000!.  at  40  percent,  would 
amount  to  2,oool.  or  f  of  the  capital ;  and  confequently  to  cover  the  infured's 
full  intereft  he  muft  infure  5,000!. : — at  50  per  cent,  the  premiums  will  equal 
the  capital : — at  25  per  cent,  the  premiums  will  amount  to  one  third  of  it. 
i.  e.  i,oool. : — at  20  per  cent,  it  will  be  750I.  for  all  the  premiums  on  3,000!. ; 
or  a  fourth  of  the  capital :  and  fo  on  in  proportion  to  the  rate  of  the  premium. 

8.  Case. — Indebitatus  affumpfit  pro  pracmio,  upon  a  policy  of  affurance 
upon  fuch  a  (hip,  the  defendant  demurred  fpecially,  becaufe  he  did  not  fhew 
the  confideration  certainly,  what  the  premium  was,  or  how  it  became  due  ; 
fed  non  allocat.  for  it  is  as  good  as  indebitatus  affumpfit  pro  quodam  falario, 
which  hath  been  adjudged  good. — Molloy,  b.  2.  c.  7.  f  3.  cites  2  Lev. — 
Fozolk  V.  Pinfacho. 

9.  Case. — A  general  indebitatus  affumpfit  will  lie  by  an  infurer  of  a  fhip 
for  the  premium  for  which  he  infured,  though  the  confideration  of  fuch 
infurance  (viz.  the  hazard  of  lofs)  is  but  a  contingency. — Per  cur.  Carth.  388* 
— Jackfon  V.  Colegrave. 

ID.  By  Stat.  8  Geo.  3.  c.  25.  f.  6. — If  any  further  premium  flial!  be  given 
(upon  any  rifque  or  adventure  diftinEl  from  that  mentioned  in  the  original 
policy)  by  any  writing  or  declaration  not  duly  flampt,  added  to  any  fucli 
original  policy,  fuch  additional  infurance  fiiall  be  void,  and  the  premium 
thereon  (hall  remain  with  the  infurer. 

11.  If  the  infurer  give  credit  for  tlie  premium  to  the  brolcer  or  otherSj 
he  lias  his  recourfe  only  on  them ;  but  if  the  brolcer  or  oiliers  become 
incapable,  and  the  infured  have  not  paid  the  premium  to  them,  the  infured 
fhall  be  obliged  to  pay  the  fum  to  the  infurer. — Or  din.  of  Stockk. 

12.  See  Alteration  of  Policy  Voyage  or  Rifque,  Broker,  Commodity,  Dcpar^ 
ture.  Enemy,  Infurance,  Intercjt,  Law  of  Nations,  Lofs,  Prior-Infurance, 
Reinfurance,  Return,  Rifque,  Seafon,  Stamps,  Valuation,  War. 


PRIOR-INSURANCE. 

1.  "TTTHEN  merchants  caufe  a  greater  fum  to  be  alfured  than  the  goods 
»  '  are  worth,  or  amount  unto,  when  they  arc  laden  into  any  fliip 
which  is  expedled  homewards,  making  account  that  their  factors  will  fend 
them  greater  returns  than  they  do  ;  in  this  cafe,  the  cujlom  is,  that  thofe 
aflurers  that  have  lafi  fubfcribed  to  the  policy  of  affurance  bear  not  any 
adventure  at  all,  and  muft  make  reflitution  of  tlie  premium  by  them  received, 
abating  one  half  in  the  liundred  for  tlielr  fubfcription  ;  and  this  is  duly 
obferved  ;  and  fo  a  law  not  obfervcd  is  inferior  to  a  cullom  well  obferved. — • 
Molloy,  Lex  Merc.  112. 

5  H  2.     When* 


410  P    R    I    O     R    -    I    N     S     U    R    A    N     C    E. 

2.     When  a  fpace  has  intervened  between  fliipping  and  (liipping,  infuiing 
and  infuring,  the  infurers,  who  flood  alone  for  a  while  expofed  to  a  rifque 
upon  the  goods j^ry?  fliipped,  fhould  not  afterwards  be  put  on  a  level  with 
thofe  who  underwrote  later,  and  for  whofe  rifque  goods  were  later  feat  aboard, 
or  not  fent  at  all.     At  London,  it  is  commonly  infifted,  that  all  who  have 
infured  on  goods  expefted  for  one  and  the  fame  perfon's  account,  without 
particularihng  thera,  whether  they  be  comprehended  in  one  or  more  policies, 
and  underwrote  fooner  or  later,    fiiall  contribute  equally  to  any  lofs,  or  die 
return  of  premium  if  over-infured :    which  would  be  jull  and  right,  if  all  the 
feveral   policies  had   been   figned    before  any  goods  went  on  board ;    but 
not  otherwife. — For  a  proof  of  this  aflertion,  let  us  fuppofe  that  a  perfon 
who   expetled   goods    from  Cadiz    in    the  fliip  B.  to  the  value  of  5,000!. 
infured  2,oool.  provifionally  at  the  London-Infurance  office,.under  the  general 
terms  of  goods,  before  he  knew  of  any  goods  being  fliipped  :  on  his  receiving 
advice,  fomc  time  after,  that  the  value  of  2,oool.  was  gone  on  board,  he  got 
3,oool.  more  infured  by  the  Royal-Exchange-Infurance  company :    now  we 
maintain  that  two  thoufand  pounds  value  of  the  goods  fi)Jl  flapped,  ought  to 
be  applied  to  the  London-Infurance  company,  and  not  mixed  with  the  goods 
loaded  lajl ;  for  it  is  poffible  that  the  fhip  B.  might  have  periflied  in  the  bay 
of  Cadiz,  with  only  the  firll  fliipped  goods  on  board,  and  before  the  refolution 
was  taken  in  London  to  increafe  the  infurance ;    confequeritly  the  Royal- 
Exchange  company  would  not  have  been  comprehended  in  the   faid  lofs : 
and  although  the  laws  of  France,  Holland,  Hambuigh,  and  Stockholm,  are  in 
this  refpeft  lefs  fubjeft  to  contrariety,  by  ordaining  that  only  the  perfons  who 
underwrote  one   and  the  /ame  policy,  fliall  fl;and  upon  an  equal  footing,  and 
that  the Jlrfi-Hgned  policy  Ihall  firfl  ftand  good ;  yet  this  alfo  admits  of  fome 
diftinflions,  as  will  appear  by  the  following  injlance  ; — ■ 

A.  at  Hamburgh,  intending  to  fliip  the  value  of  20,000  rix-doUars  for  his  own  account 
in  the  Cadiz  Galley,  gives  B.  a  broker,  orders  to  get  10,000  rix-dollars  infured;  and  to 
another  broker  C.  he  gives  the  fame  fum ; 
J],  opens   his  policy,  and  gets  ligned,  the 

1^0^  Jan.  4,000 

6th  ditto  g.ooo 

7  th  ditto  3: 000 


C.  opens    his  policy    and  gets  figned,    die 
2d  of  Jan.  5,000  ) 

3a    ditia  2,000  ) 

4th  ditto  '   3,000 


We  apprehend  that  notwithftanding  here  were  two  policies,  and  that  that  of  B.  was  firft 
opened,  yet  the  infurers  on  both  ought  to  be  rcfponfible  according  to  the  dates  when  each 
fi<Tned:  for  fuppofe  that  by  the  3d  of  January  the  value  of  12,000  rix-dollars  had  been 
fent  on  board,  and  the  fliip  in  the  night  between  the  3d  and  4th  was  burnt;  die  6,000  rix- 
dollars  upon  B.'i  policy  hiid  not  been  figned,  and  coniequently  only  the  4,000  rix-dollars 
could  be  engaged  in  the  lofs ;  but  upon  C.'i  it  would  fall  on  7,000  rix-dollars  :  from 
whence  it  follows,  that  in  cafe  A.  had  only  fhipped  till  the  3d  of  January  to  the  value  of 
12,000  rix-dollars,  the  aforefaid  infurance  of  20,000  rix-dollars  remained  executed: 
and  if  on  the  8th  of  January  he  changed  his  mind,  and  refolved  to  fliip  no  more,  die 
return  of  premium  on  the  8,000  rix-dollars  ought  in  juftice  to  be  made  upon 

Rix-dollars  2,000,  of  the  3,000  from  C.'s   policy,    figned  the  4th  Jan. 

g.ooo,  from  B'i  figned         6th    ditto. 

3,000,  from  ditto  figned         7th    ditto. 

By 


PRIOR-INSURANCE. 


411 


By  all  which  we  think  the  necelRty  of  being  as  explicit  as  poHible  in  all 
infurances,  is  rendered  fufficiently  plain. — 1  Mag.gi. 

3.  When  an  infurance  is  intended  to  be  done  abroad,  and  at  home;  an 
explanation  in  the  policies  on  both  fides,  which  flaall  have  the  preference,  cw 
ftand  good  firfl,  is  a  very  material  circumftance,  becaufe  this  cannot  be 
decided  by  the  dates  alone  :  for  injlance  ; — 

A  perfon  refilling  at  Hamburgh  had  the  value  of  10,000  rix-dollars,  or  2,400!.  flerling, 
to  fliip  for  Lifbon,  and  had  aftually  loaded,  on  the  ill:  of  July,  to  the  value  of  4,000 
rix-dollars ;  whereupon  he  gave  an  order  that  day  to  his  correfpondent  in  London,  to  get 
infdrancc  done  for  i,oool.  fterling,  without  any  limitation  cither  in  premium  or  circum- 
ftances ;  and  on  the  4th  of  July,  he  got  infured  at  Hamburgh  the  remaining  1,400!.  or  17,500 
marlvs,  though  he  liad  not  then  fliipped  more  than  the  firft  mentioned  4,000  rix-dollars, 
or  12.000  marks;  and  the  5th  oi  July  fome  circumflances  occurred,  that  induced  him 
to  alter  his  dellgn,  and  to  refolve  on  fliipping  no  more  : — now  the  query  is,  who  ou^ht  to 
malce  a  return  of  premium  according  to  the  fenfe  of  the  Hamburgh  ordinance  ? — to 
which  we  reply  ;  that  notwithftanding  the  underwridng  of  the  London  infurcrs  mufl;  be  of 
a  later  date  than  that  of  thofe  in  Hamburgh,  who  underwrote  the  5th  of  July,  becaufe  the 
order  fent  to  London  on  the  ifl;  of  July  could  not  poflibly  arrive  there  before  the  7th, 
and  therefore  the  underwriting  in  London,  could  not  be  before  that  or  the  next  day ; 
yet  we  are  very  clear,  that  the  infurance  in  London,  though  later  in  date,  ought  to  ftand 
good  before  that  made  at  Hamburgh  :  for,  if  between  the  ift  of  July,  that  the  order  for 
infurance  was  fent  to  London,  and  the  4th  of  the  fame  month,  when  it  was  made  at 
Hamburgh,  the  fliip  had  been  burnt,  this  laft-mendoned  infurance  could  not  have  talcen 
place;  and  confequently  that  done  in  London,  on  the  order  given  the  ift  of  July,  muft 
have  borne  the  entire  lofs  of  thtk  Jirjl  Jhipped  goods.  Therefore  we  think  it  is  evident, 
that  the  retonz  of  premium  ought  to  be  made  by  the  Hamburgh  infurers. — Ibid.  92. 

4.  If  it  (liall  happen  that  any  goods  are  found  to  be  infured  in  different 
places,  but  without  any  fraud  intended  on  the  part  of  the  affured,  in  fuch  cafe 
the  Jirjl  affurance  fhall  only  take  place,  if  the  fame  is  large  and  fufficient 
enough  for  all  the  goods,  as  far  as  they  are  permitted  to  be  infured :  but  if 
not,  the  remainder  fhall  fall  on  the  affurance  next  following,  which  fliall  be 
deemed  void  and  of  no  value,  for  fo  much  as  the  fame  fhall  exceed  the  faid 
remainder  ;  provided  however,  that  the  affurer  for  that  reafon  may  flop  one 
half  per  cent,  for  keeping  of  his  books,  and  other  purpofes,  according  to 
ancient  cuflom. — Or  dm.  of  Antxo. 

r.  "When  affurance  has  been  made  for  a  larger  fum  than  the  rifque 
amounts  to,  cither  becaufe  the  fame  was  done  in  different  places,  or  for  any 
other  reafons ;  then,  thofe  that  underwrote  Jirjl  in  point  of  time  fliall  be 
deemed  to  have  run,  and  to  run  the  rifque,  and  the  premium  to  be  returned 
to  the  remainder ;  but  of  thofe  that  underwrote  at  the  fame  time,  each  of 
them  fliall  be  anfwerable  for  the  fum  he  has  figned. — Ordin.  of  Genoa. 

6.  If  it  might  happen,  that  goods  were  difcovered  to  be  infured  at  different 
places,  withoutyr^w^  being  intended  on  the  part  of  the  affured  ;  in  that  cafe, 
the  firfl  affurance   only  fliall  take  place,   provided  the  fame  is  large  and 

fufficient 


412 


PRIVATEER. 


fufficient  enouorh  for  the  amount  of  the  goods,  as  far  as  it  is  permitted  to 
affiire  them ;  if  not,  the  next  enfuing  affurance  iliall  ftand  good  for  the 
remainder,  referving,  neverthelefs,  the  Ubcrty  to  the  alfurer,  to  keep  back  one 
half  per  cent,  by  reafon  thereof,  for  keeping  his  books  and  fo  forth,  according 
to  ancient  cuflom. — Ordm.  of  MiddLcb. 

r.  If  any  perfon  has  made  affurance  upon  ^tfame  goods  at  two  or  more 
places,  it  fliall  not  be  in  the  option  or  power  of  the  afl'ured,  to  have  the 
premium  returned,  or  which  affurance  he  pleafes  to  be  difannuUed,  nor  fhall 
any  regard  be  had  herein  to  the  difference  of  the  premium  ;  but  the  eldefl  or 
prior  policy,  which,  according  to  it's  date  was  firfl  underwrote  by  the  affurers, 
fliall  remain  in  full  force,  whether  they  have  received  more  or  lefs  premium 
than  the  juniors  or  latter;  but  the  affurance  made  fubfequently  is  to  be 
annulled  by  returning  of  the  premium :  or  fhould  the  allured  aft  to  the 
contrary,  notwithftanding  what  is  here  ordered,  fuch  lafl;  affurance  fliall  of 
itfelf  be  deemed  null  and  void,  and  the  affurers,  that  have  underwrote  there- 
unto, fliall  in  all  events  be  entitled  to  keep  the  whole  premium. — Ordin. 
of  Hamb. 

8.  In  returns,  as  alfo  in  averages  and  loffes,  the  infurers  who  have  under- 
written on  one  and  thtfame  policy,  although  it  be  with  difference  of  dates, 
fhall  fliare  equally : — but  if  more  than  one  policy  is  ufed  and  underwritten 
upon,  for  one  and  the  fame  parcel  of  goods  and  interejt,  then  the  Jiijl  policy 
in  date,  without  regarding  the  following  policy,  fliall  take  place,  for  the 
amount  of  the  fum  infured,  for  the  value  of  the  goods  and  effefts ;  and  the 
reduftion  fliall  fall  on  the  policy  of  later  date,  as  well  in  cafe  of  returns,  as  of 
average  and  lofles. — Ordin.  of  Amjl. 

g.  If  more  is  infured  than  the  cargo  is  worth,  thofe  who  have  lajl  figned 
the  policy  fhall  be  deemed  the  poflerior  underwriters,  although  others  have 
figned  it  the  fame  day  ;  and  fliall  neither  gain  nor  lofe  more  than  the  half  per 
cent,  for  cancelling  the  rifque. — Ordin.  of  Spain. 

10.  Remark. — In  cafes  of  over-infurances  or  double  infurances,  on  the 
fame  or  different  policies  in  the  fame  or  different  places,  frauds  and  impofi- 
tions  are  fometimes  committed  in  turning  loffes  on  the  infurers,  or  demanding 
returns  of  premium  ;  and  fixing  interefl  or  not,  in  whole  or  in  part,  according 
to  events,  efpecially  in  infurances  "  on  any  fliip  or  fliips." 

11.  See  Prelim.  Difc.  44.  Declaration,  Double- Injur ance.  Goods,  Premium, 
Regulation,  Return,  Ship  or  Ships. 

PRIVATEER. 

1.  T3RIVATEERS  and  capers  are  fynonimous  terms  for  the  fame  thing, 

-■-     with  this  only  difterence,  that  the  latter  are  fmaller  veflels  than  the 

others :    they   are  generally  efteemed  private    fhips   of  war,   fitted  out  by 

particulars. 


PRIVATEER. 


413 


particulars,  in  order  to  annoy  the  enemy ;  though  the  commiirion  is  neither 
fo  lading  nor  fo  honourable  as  that  given  to  the  commander  of  a  king's  (hip, 
the  one  being  certain  and  continued  whilft  his  behaviour  is  unexceptionable, 
the  other  only  temporary  and  occafional ;  the  one  appointed  by  his  majefty, 
the  other  by  a  fubjeft  (with  the  prince's  approbation)  and  liable  to  be  turned 

out  at  the  owner's  pleafure. No  privateer  may  attempt  any  thing  againfl 

the  Law  of  nations ;  as  to  affault  an  enemy  in  a  port  or  haven,  under  the 
proteftion  of  any  prince  or  republic,  be  he  friend,  ally,  or  neuter ;    for  the 

peace  of  fuch  place  muft  be  kept  inviolable. And  at  the  time  of  granting 

thefe  private  commilhons,  great  care  is  always  taken  (by  bond)  to  preferve 
the  leagues  with  our  allies,  neuters,  and  friends,  according  to  the  various 
and  feveral  treaties  fubfifting  between  us,  and  it  is  for  this  reafon  that  fecurity 
is  demanded,  and  given  by  refponfible  men  (not  concerned  in  the  fhip)  to  the 
value  of  1,500!.  for  all  fliips  carrying  lefs  than  150  men,  and  3,000!.  for  every 
fhip  carrying  more,  that  they  will  give  full  fatisfaftion  for  any  damage  or 
injury  that  they  (hall  commit  in  their  courfes  at  fea,  contrary  to,  and  in  breach 
of,  the  aforefaid  treaties  ;  and  alfo  under  the  penalties  of  forfeiting  their 
commilTions,  and  for  which  their  (liips  are  likewife  made  liable. — Lex  Merc, 
rediv.  204. 

2.  The  ufe  of  thefe  fort  of  veffels  we  were  taught  by  our  neighbours,  and 
obliged  by  their  example  to  encourage  them,  who,  in  the  firfl  long  war, 
almofl  covered  the  feas,  and,  like  locufls,  devoured  every  thing  they  could 
overpower ;  and,  in  the  late  embroils,  we  fufficiently  experienced  their 
utility,  if  diftreffing  the  enemy  may  be  termed  fo,  as  they  advantageoufly 
inculcated  the  leflbn  on  the  original  teachers,  and  almoft  ruined  the  trade 
of  the  hrft  inventors  of  thefe  annoyances,  fo  deflruftive  to  the  peaceful 
mercantile  employ ;  and,  that  we  might  not  be  tardy  in  encountering  the 
enemy  at  their  weapons,  the  legiflature  have  thought  proper  to  encourage 
this  way  of  molefling  them,  by  feveral  acls. — Ibid.  207. 

3.  By  Stat.  19  Geo.  2.  c.  37.  f.  2. — AlTurance  on  private  fliips  of  war, 
fitted  out  by  his  majelly's  fubjefts,  folely  to  cruife  againfl  his  enemies,  may 
be  made  by  or  for  the  owners,  interefl  or  no  interefl,  free  of  average,  and 
without  benefit  of  falvage  to  the  infurer. 

4.  Case.- — (Before  the  houfe  of  lords).  Peter  Joyce  being  a  part-owner 
of  one  moiety  of  a  (liip  called  the  Good-fellow  Privateer,  together  with  the 
other  owners,  fitted  her  out  to  cruife,  and  in  April  1744  obtained  a  commif>- 
fion  for  that  purpofe  :  Mr.  Joyce,  being  himfelf  the  mafler  of  the  fhip,  and 
abroad,  employed  Melfrs.  George  Fitzgerald,  uncle  and  nephew,  and  partners, 
to  make  an  infurance  for  his  interefl  and  ufe  :  they  accordingly  procured  a 
policy  of  infurance  for  i,oool.  hereafter  mentioned  to  be  figned  by  feveral 
underwriters,  among  whoai  the  defendant,  Charles  Pole,  underwrote  for  lool. 
on  the  3ifl  of  Augufl  1744. — Mr.  George  Fitzgerald,  the  elder,  died  in  March 
1743  ;  and  the  right  of  adion  on  this  policy  furvived  to  Mr.  George  Fitzgerald, 

5  I  ^^^ 


iti  P    R    I    V    A    T     E     E     R. 

the  now  plaintiff. — The  purpofe  for  which  the  Good-fellow  Privateer  was 
fitted  out  and  employed  during  the  time   for  which  the  infurance  was  made, 
being  totally  defeated  by  a  mutiny  of  the  failofs  on  board,  their  defertioa 
from  her,  and  carrying  olf  the  fire-arms  belonging  to  the  fliip  ;  the  plaintiff, 
in  Hilary  Term  1748,  on  the  behalf,  and  for  the  ufe  of  Peter  Joyce,  brought 
an  a6lion  on  the  cafe  in  the  court  of  king's  bench,  againft  the  defendant, 
Charles  Pole  ;    in  which  he  declares  as  follows ;    fetting  forth  the  policy  at 
large ;  wherein  it  was  expreffed  to  be  an  infurance,  "  loft  or  not  loft,  at  and 
from  Jamaica  to  any  ports  and  places  where  and  whatfoever,  at  fea  or  ftiore, 
a  cruifing  from  port  to  ports,  and  from  place  to  places,  for  and  during  the 
tei-m  and  fpace  of  four  calendar  months,  upon  the  body,  tackle,  &c.  of  the 
/7^^/^,  &c.  beginning  the  adventure  upon  the  faid  fliip,  &c.  and  immediately 
following  the  iz^th  of  June  then  laft;   and  fo  fliould  continue,  &c.  a  cruifing 
from  port  to  ports,  and  place  to  places,  for  and  during  the  term  and  fpace  of 
four  calendar  months,  at  and  after  the  rate  of  twenty  guineas  per  cent,   the 
affurers  htmg  free  from  all  average ;" — ^and  that  the  faid  fliip,  on  the  14th  of 
June  1744,  being  at  Jamaica  rn  good  fafety,  departed  from  thence  uDon  her 
laid  intended  voyage  a  cruifing,  and  was  a  cruifing  until  the  23d  of  Septem- 
ber 1744,  when  file  was,  in  a  mutinous  manner,  by  force  and  arms,  feized 
and  detained  by  the  greateft  part  af  the  mariners  then  on  board  her ;  and  by 
them  carried  back  again  to  Jamaica  ;    where,  on  the  30th  of  September,  they 
ran  away  from  the  fliip,  with  her  boats,  and  totally  quitted  and  deferted  her ; 
whereby  the  fliip  did  not,  nor  could  not,  perform  her  faid  voyage  a  cruifing; 
but  from  the  time  of  feizing,  &c.  was  totally  difabled  to  perform  the  fame: 
whereby  the  owners  and  proprietors  of  the  faid  fliip  totally  loft  all  profit, 
benefit,  and  advantage,  that  might  have   accrued  to  them  in  and  from  the 

faid  criiifc,  during  the  refidue  of  the  faid  four  calendar  months,  &c. To 

this  declaration  the  defendant  pleaded  the  general  iffue  :    the  caufe  was  tried 
at  the  fittings  in  London,  before  Lord  Chief  Juftice  Lee,  by  a  fpecial  jury; 
when,  at  the  requeft  of  the  defendant's  counfel,  a  fpecial  verdiEl  was  found 
(in  fubftance,  as  follows)  viz. — "  That  the  faid  fliip  -was  fafe  at  Jamaica,  the 
14th  of  June  1744;  and  failed  from  thence  the  fame  day   upon  the  cruife, 
&c. :  that  on  the  10th  of  July  1744,  flie  met  with  a  French  fliip,  with  money 
and  goods  on  board  to  the  value  of  4,2001.  and  made  prize  thereof;  and  that 
afterwards,  -viz.  upon  the  31ft  of  Auguft  following,  Peter  Joyce,  the  captain, 
being,  through  illnefs,  unable  to  continue  in  the  command,  quitted  her  with 
the  confent  of  all  the  crew  ;  and  the  firft  lieutenant  thereof,  John  Hufl'ey,  was, 
by  joint  confent  of  the  captain,  and  all  the  mariners,  appointed  commander: 
that  whilft,  Ihe  was  failing  on  the  faid  cruife,  for  a  port  or  place  called  the 
River  of  Dogs,  to  procure  water,  viz.  on  the  23d  of  September   1 744,  the 
erew  mutinied,  feized,  and  deferted  her,  &c.  by  which  the  cruife  was  totally 
prevented  and  loft  for  the  remainder  of  the  faid  four  months,  &c.  (and  all  the 
other  fafts  as  fet  forth  in  the  declaration)   but  whether,  upon  the  whole 
niatter  by  them  the  faid  jurors  in  form  aforefaid  found,  the  aforefaid  Charles 
Pole  did  undertake  and  promife  in  manner  and  form  within  written,  or  not, 
the  faid  jurors  know  not,  but  pray  the  advice  of  the  court  thereupon,  &c.'' 

UpoQ 


PRIVATEER.  415 

Upon  this  verdift  the  court  of  king's  bench,  in  EafterTerm  1750,  g^\e  judg- 
ment for  the  plaintiff;  upon  which  a  writ  of  error  was  brought  in  the 
exchequer  chamber  ;  and,  after  twice  arguing  the  cafe,  the  judgment,  by  the 

unanimous    opinion   of  all  the  judges  of  the  faid  court,  was  reverfed. 

The  plaintifiF  brouglit  his  writ  of  error  in  parliament  againft  the  judgment 
pronounced  in  the  exchequer  chamber.  The  general  errors  are  alhgned ; 
and  the  defendant  has  pleaded  there  is  no  error  ;  and  thereupon  iflue  is  joined. 

Argument  for  the  Plaintiff. 

It  is  found,  that  by  the  mutiny,  &c.  the  voyage  and  cruife  was  totally 
prevented  and  loft,  for  the  remainder  of  the  four  months,  from  the   23d  of 
September. — It  is  avenged,  that  Peter  Joyce  had  intereft  during  the  cruife  in 
the  fhip,  and  found,  that  he  had  intereft  in  the  ftiip,  to  the  amount  of  the 
fum  infured :— that  the  ftiip  was  in  being  at  and  after  the  end  of  the  four 
months : — the  general  queftion  is,  "  Whether  an  event  has  happened,  upon 
which  the  underwriters,  by  the  terms  of  the  policy,  are  to  pay  ?" — Though 
different  accounts  are  given  of  the  invention  of  infurances,  yet  they  certainly 
were  brought  into  praftice  by  merchants  for  the  fake  of  trade,  and  in  order 
to  divide  the  rifque : — the  nature  of  the  contraft  originally  was,  that  a  fpeci- 
fied  voyage  fliould  be  performed  free  from  perils ;    and,  in  cafe  of  accident, 
the  infurer  was,   for  a  certain  price,  to  bear  the  trader  harmlefs ;  hence  it 
followed,    that  this   contraft   originally  related   to  the   fafety  of  a   voyage 
particularly  defcribed,  in  refpeft  either  of  (liip  or  cargo  ;    and  that  the  infured 
could  not  recover  beyond  the  amount  of  his  real  lofs ;  therefore,  without 
abandoning  what  was  faved  to  the  infurer,  he  could  not  recover  the  whole 
value,  except  in  cafe  of  a  total  lofs : — a  very  inaccurate  form  of  this  contraft 
was    anciently  ufed  among  merchants,   and  drawn  by  themfelves  ;    it  was 
brought  into  England  by  perfons  who  came   from  abroad,  and  fettled  in 
Lombard-Street ;  the  terms  of  this  contraft,  though  very  imperfeftly  penned> 
having  acquired  a  fenfe  from  the  ufage  of  merchants,  the  form  is  followed  to 
this  day  ;  and  every  policy  refers  to  thofe  made  in  Lombard-Street ;  hence, 
contrary  to  the  general  rule,  parol  evidence  is  admitted  to  explain  this  contraft, 
though  in  writing ;  and  the  words  are  controuled,  or  liberally  fupplied,  by  the 
2n/eni^  of  the  agreement,  the  ufage  of  merchants,  and,  above  all,  by  judicial 
determinations,   which  are  the   ftrongeft  evidence    of  the    received   law  of 
merchants :  upon  thefe  policies,  the  voyage,  and  not  the  bare  fafety  or  exiftence 
o^Jliip  ox  cargo,  is  the  fubje£l-matter  of  the  infurance  : — in  procefs  of  time 
variations  were  made,  by  exprefs  agreement,  from  the   firft  kind  of  policy : 
it  being  troublefome  to  the  trader  to  prove  the  value  of  his  intereft,  and 
afcertain  the  quantity  of  the  lofs,  he  gave  the  infurer  a  high  premium  to  agree 
to  eftimate  his  interejl  at  a  precife  fum,  and  to  give  up  his  claim  to  what 
might  be  faved ;    and  the  infured,  on  the  other  hand,  waved  any  claims  of 
contribution,  in  refpeft  of  accidents  which  might  obftruft,  but  not  defeat  the 
voyage  : — to  recover  upon  this  kind  of  policy,  the  infured  need  only  prove, 
that  he  had  an  intereft,  without  fliewing  the  value  : — cafes  where  it  might  not 

be 


4i6  PRIVATEER. 

be  proper  for  the  trader  to  difclofe  the  nature  of  his  intereft,  introduced  a 
third  kind  of  policy ;  where  the  infurer  difpenfed  M-ith  the  infured  having  any 
interefl  either  in  fhip  or  cargo :  in  thefe  two  laft  kinds  of  poHcies,  "  valued, 
free  from  average"  and  "  interefl  or  no  interefl,"  it  is  manifeft  that  the 
performance  of  the  r;o>'fl^^^  or  adventure,  in  a  reafonable  time  and  manner, 
and  not  the  bare  exiflence  of  the  (hip  or  cargo,  is  the  objeft  of  the  infurance, 

and  fo  it  has  been  often  adjudged.* Many  other  forts  of  infurances  upon 

other 

*  Case. — Iiifurance  on  a  hoy  ufcd  for  a  packet-boat  from  Helvoetfluys  to  Harwich,  inlerejl  or  no 
intere.J},  without  further  account:  &c. — The  queftion  was  not,  whether  \\\<t  properly  oi  ih.^ Jliip  was 
loft  by  the  capture;  but  wheilier  the  capture  was  a  peril  infured  againft,  and  had  happened  in  the 
voyage  ?— De  Paiba  v.  Ludlow. — (See  Capture.) 

Case. — Infurancc  on  the  (hip  called  the  LudioW-Caftle  man  of  war,  from  Jamaica  to  England, 
interejl  or  no  interefl,  Jree  of  average.  Sec,:  this  fhip  was  in  her  voyage  compelled  by  florm  at  fea  to 
put  into  Antigua;  where  Admiral  Knowles,  being  in  want  of  a  hulk  for  his  majefty's  fervice,  thought 
proper  to  convert  the  Ludlow-Caftle  to  that  ufe :  the  treafure  on  board  her  was  brought  home  in  the 
Scai borough  :  the  infured  brought  his  aftion  ;  and  though  it  appeared  in  evidence  that  the  fhip  was 
exifting,  it  was  determined,  and  by  a  fpecial  jury  a  verdift  given  acccordingly,  that,  the  voyage  from 
Jamaica  being  hj},  the  plaintiff  was  entitled  to  recover,  which  he  did. — Barclay  v.  Collier; — Mich. 
ly  Geo.  2.  B.  R. 

Case. — Ini'urance  on  the  Sarah  GaHey,  at  and  from  London  to  Gibraltar,  and  from  thence  to 
London,  valued  at  the  fum  infured  :  this  fhip  was  chartered  from  London  to  Gibraltar,  and  thence 
to  the  Nore,  to  receive  orders  from  the  freighter;  and  the  plaintiff  was  the  fole  owner  of  the  (hip: 
the  fhip  arrived  at  Gibraltar  in  June ;  and  was  loaded  with  wines  by  the  freighter's  correfpondent 
for  her  return  voyage  :  at  Gibraltar  the  fhip  was  feized  by  the  Salifbury  and  Solebay  men  of  war  : 
the  matter  was  turned  out  of  poffeffion,  and  feveral  of  the  failors  imprclfed :  the  captors  proceeded 
againft  the  Ihip  and  cargo  as  forfeited :  the  (hip  was  ordered  to  be  reftored ;  and  was  fent  by  the 
freif^hter's  correfpondent  with  a  cargo  for  Dunkirk ;  where  fhe  was  afterwards  overfet  and  loft. — • 
An  aftion  was  brought  by  the  infured  ;  and  though  it  was  relied  on  for  the  defendant,  that  the  fhip 
was  not  totally  loft,  but  had  been  delivered,  after  the  capture,  to  the  agent  of  the  freighter,  and  by 
liim  fent  another  voyage ;  yet  as  the  taking  at  Gibraltar  was  a  breach  of  the  policy  in  the  voyage, 
whereby  the  return  voyage  was  prevented,  a  fpecial  jury  gave  the  plaintiff  a  verdi6l  for  a  total  lofs; 
and  he  had  judgment  accordingly. — Storey  \.  Brown;    Trin.   18  and  19  Geo.  2.    1746.    B.  R. 

Case. — Infurance  on  the  Anna,  at  and  from  any  port,  or  place,  or  degree  of  latitude,  wherefoever 
the  (liip  might  be  on  the  7th  of  May  1741,  to  any  port,  place,  and  degree  of  latitude,  until  her  arrival 
at  London,  intereji  and  no  mterejl,  free  of  average,  &c. :  this  fhip  was  a  tender  to  the  fliips  fent  to  the 
South-Seas  under  the  command  of  Lord  Anfon,  and  proceeded  to  the  ifland  of  Juan  Fernandez,  where 
fhe  was  unloaded  and  difcharged  the  king's  fervice;  but  being  in  want  of  ftores  to  return  to  England, 
fhe  was  fold  for  the  ufe  of  the  fleet,  by  the  captain,  for  300!.  for  which  he  received  a  bill  on  the 
commifFioners  of  the  navy,  afterwards  paid  to  the  plaintiff,  the  fole  owner,  together  with  the  freight, 
and  all  the  failors  wages,  to  the  time  of  the  fate  of  the  fhip:  the  plaintiff  and  owner  alfo  received 
6,4101.  for  the  freight  of  the  outward-bound  voyage,  and  2,5901.  as  feven  months  freight,  being  the 
time  computed  the  iliip  would  have  taken  to  return  home. — An  action  was  brought  on  the  policy : 
and  although  it  was  iiififled  on  for  the  defendant,  that  the  fhip  had  not  been  deftroyed  by  any  peril 
in  the  policy,  but  fold  by  the  owner  for  the  ufe  of  the  government,  who  had,  for  the  conveniency 
of  tin-  fervice,  difpofed  of  her  as  was  thought  fit;  and  that  the  infured  had  aQually  received  a  price 
and  freight  for  her,  as  having  pci  formed  her  homeward-bound  voyage;  fo  that,  if  there  was  any  lofs 
in  point  of  value,  it  would  only  be  a  partial  and  average  lofs,  which  was  exprefly  not  to  charge  the 
infurers:  yet  upon  all  the  above  fa61s  (agreed  between  the  parties)  as  the  fliip  had  been  rendered 
incapable  of  performing  the  fervice  for  which  flie  was  fitted  out,  viz.  attending  the  fleet  in  the  fouth 
feas,  and  home,  the  plaintiff  recovered  .a  verdifl  for  a  total  lofs,  by  a  fpecial  jury,  agreeable  to  the 
diiedions  of  the  court — llanbury  v.  King;  Mich.   19  Geo.  2.  1746.  B.  R. 

Casi. 


I 


PRIVATEER.  417 

other  forts  of  things  in  the  natiire  of  zoagers  or  bargains  upon  contingencies, 
have  been  introduced ;  concerning  which,  the  agreement  of  the  parties  is  the 
rule  which  governs  ;— that  a  man  fhall  live  fuch  a  time  ;    that  one   man  fhall 
out-live  another ;    that  a  voyage  (hall  be  performed  in  a  given  time  ;    that  a 
fliip  (hall  arrive  at  fuch  a  port  before  fuch  a  fair ;  and  every  other  contingency 
may  be  infured  at  a  fixed  fum. — Many  merchants,  with  a  view  to  their  own 
gain,  as  well  as  public  fervice,   defiring  to  engage  in  fitting  out  privateers, 
the  greateft  expence  of  which  confifls  in  the  oiUfet,  the  vidualling,  the  Jlores, 
the  advance-money  paid  tlie  failors,  &c.  they  bethought  themfelves  whether 
they  could  divide  the  rifque  by  infurance : — by  the  firft  kind  of  infurance 
(open  policies)  they  could  not  do  it,  becaufe  there  was  no  cargo :    and  the 
value  of  the  fhip  was  not  the  meafure  of  the  owner's  expence  and  rifque  : 
they  could  not  do  it,  according  to  the  fecond  or  third  kind,  defcribing  any 
particular  voyage  :    the  way  therefore  taken  was,  to  infure  the  fiiip  from  all 
perils  enumerated,  "  as  a  privateer,  to  cruife  during  a  limited  time  ;"    and 
fuch  infurance  of  privateers   is  a  modern  pra6lice :    the  very  end  of  this 
contraft  (hews,  that  the  capacity  of  the  Jliip  to  cruife,    notwithftanding  the 
■perils,  and  not  the  exiftence  or  the  property  of  the  fhip,  at  the  end  of  the 
limited  term,  is  ihefUbjeSi  matter  of  fuch  an  infurance  :    and  this  is  not  only 
the  obvious  meaning  of  the  parties  to  fuch  a  contraft  ;   but  judicial  determi- 
nations have  declared  this  to  be  the  fenfe.* The  legidature  has  confidered 

the  infurance  of  privateers  as  beneficial,  and  plainly  underftood  that  the 
exiftence  of  the  fhip  was  not  the  fubjeft-matter  of  the  infurance  : — an  aft  of 
19  Geo.  2.  wliich  prohibits  infurances,  intereft  or  no  interefl,  provides,  that 
aflurance  may  be  fo  made  on  private  fhips  of  war,  folely  to  cruife,  &c.  (fee 
page  413) : — there  was  no  occafion  to  except  the  cafe  of  privateers,  had  the 
exiftence  of  the  fliip  been  looked  upon  as  the  only  objeft ;  the  value  of  the 
infurance  might  have  been  confined  to  the  interefl  in  xSxe  fhip :    upon  fome  of 

Case. — Infurance  on  goods  in  the  Durfley  Galley,  &c. — Dean  v.  Dicker. — (See  Interefl  or  no  Interejt). 

Case. — Infurance  on  tlic  Dlfpatch  Galley,  interefl  or  no  interefl,  free  of  average,  &c.  from'Jamaica 
to  Hull  :  in  her  voyage  fhe  was  taken  by  a  French  privateer  and  carried  to  Hamburgh  ;  and,  after  being 
twelve  days  in  the  hands  of  the  enemy,  fhe  was  retaken  by  Hurft,  mafler  ot  an  Englifh  fliip,  and  brought 
to  London,  where  (he  was  adjudged  to  be  reftored  to  the  owners,  paying  falvage  :  the  owner  fold  the 
Ihip,  and  paid  the  falvage. — An  aftion  being  brought  on  the  policy,  notwithilanding  the  fhip  had  not 
been  loft,  but  was  fold  by  the  owner,  it  was  held  to  have  been  a  lofs  of  the  voyage ;  and  the  fpecial 
jury  gave  a  vcrdift  accordingly. — Wliilehead  v.Bance.     Mich.  23  Geo.  2.  1749.     B.  R. 

*  Case. — Infurance  for  three  months,  from  the  21ft  of  December  1744,  upon  the  Salamander 
privateer,  &c. — Pond  v.  King. — [Sec  Capture.) 

Case. — Infurance  on  a  privateer  for  two  months:  in  the  firft  month  fhe  was  taken  by  the  enemy, 
2iT\i  retaken',  &c. — Jenkins  &  Roberts  v.  Mackenzie. — Mich.  23  Geo.  2.  1749. — (See  Crui/e.) 

Case. — An  aftion  upon  the  very  fame  policy  now  in  queftion  againft  another  underwriter,  in  which 
the  plaintiff  declared  verbatim,  as  in  this  cafe  ; — a  verdift  for  the  plaintiff,  by  a  fpecial  jury,  agreeable  to 
the  direftion  of  the  court:  judgment  accordingly:  the  defendant  brought  a  writ  of  error  ;  bur, 
defpairing  of  fuccefs,  fuffered  it  to  be  non-profl'ed,  and  paid  the  money  and  cofls. — Fitzgerald  V. 
Wainhoif.     23  Geo.  2.    1749.     B.  R. 

5  K  the 


-iiS 


P    R    I     V    A    T    E     E     R. 


the  rcafons  and  authorities  above  referred  to,  as  well  as  others,  the  court  of 

kino-'s  bench  o-ave  judgment  in  this  cafe  for  the  plaintitl. The  objeftions 

to  the  judgment  of  the  court  of  king's  bench,  principally  rehed  upon,  feem 
to  be  thefe  ; — iH  objcfiion  ;  as  the  fliip  exifled  at  the  end  of  four  months, 
nothing  vas  to  be  paid ;  the  infurers  only  undertaking  that  the  fliip  fliould 
not  be  totally  loll  or  deflroycd  widiin  that  time  ; — 'cmfwcr ;  this  objeclion 
proves,  that  if,  during  the  whole  four  months,  the  fliip  had  been  by  force 
turned  into  a  fire  ftiip  or  tranfport ;  detained  in  port  by  an  embargo  ;  taken 
and  kept  by  privateers  ;  arrefted  and  detained  by  princes  ;  fo  difabled  in  a 
{form  the  firfl  day,  as  not  to  be  capable  of  going  to  fea  during  the  time  ; 
provided  tlie  owners  had  the  (hip  or  her  hull  again,  the  infurers  were  to  pay 
nodiing  ;  which,  behdes  contradicting  fo  many  principles  and  authorities, 
proves  more  than  will  be  ferioully  contended  for,  and  drives  die  refpondent 
to  another  objeclion  : — 2d  objeElion  ;  fuppofe  the  meaning  was  to  inlure  th« 
fhip's  capacity  to  cruife  (notwithflanding  the  perils  mentioned)  during  four 
months ;  yet  unlefs  (he  was  prevented  by  any  pf  the  means  mentioned  in  d>e 
policy,  during  the  whole  time,  nothing  is  to  be  paid ;  for  the  infurance  mult 
be  taken  to  be  only  againll  the  entire  lofs  of  the  whole  time,  but  here,  in  this 
cafe,  the  fhip  cruifed  part  of  the  time: — anfiocr ;  at  this  rate  of  arguing, 
if  the  fliip  was  fafe  at  any  time  on  the  15th  of  June,  there  never  could  be  a 
lofs  afterwards  :  though  the  fliip  had  been  burnt,  funk,  or  taken,  on  the  16th, 
the  infurers  would  not  be  liable ;  which,  behdes  contradicting  all  the 
authorities  in  the  cafe  of  privateers  (in  every  one  of  which  the  fliip  had 
cruifed  fome  time)  reduces  the  four  months  to  the  firfl;  inflant  oi  that  time  ; 
and  therefore  is  a  flat  contradiction  to  the  exprefs  terms  of  the  policy  : — 
^^  objeElion;  if  the  fliip's  capacity  to  cruife,  and  not  the  bare  exiflence  of 
tlic  fliip,  A\'as  the  thing  infured,  it  is  not  found  that  Peter  Joyce  had  any 
interefl  in  the  crqife ;  only  that  he  was  owner  of,  and  had  interell  in  the  fhip 
during  the  cruife: — anfiocr;  the  property  of  the  fliip  carries  an  intereft  in 
her  capacity  to  cruife  4  a  public  law,  having  given  prizes  taken  by  privateers, 
to  and  among  the  owner  or  owners  of  futh  fliip  or  vcflel,  and  the  feveral 
perfons  that  Ihall  be  on  board  the  fame,  in  fuch  fliares  and  proportions  as 
fiiall  be  agirCed  cwi  with  the  owner  or  owners  of  fuch  fliip  or  veflel :  and  to 
fuppofe  the  o^vner  to  have  parted  with  his  whole  intereft;  in  the  ufe  of  the 
fliip  during  the  cruife,  and  yet  to  have  retained  his  intereft;  in  the  privateer 
during  the  cruife,  is  to  make  an  intendment  contrary  to  the  averment  in 
the  declaration,  aild  ftnding  of  the  verdicl ;  and  to  fuppofe  a  cafe  which 
never  exifled  in  fact,  that  tlie  owner  of  a  privateer  lets  her  out,  on  freight, 
to  cruife  as  a  privateer;  the  parties  on  this  contract  have  agreed,  and 
underftood,  that  the  ufe  of  this  fliip  was  attendant  upon  the  property  :  for 
they  have  infured  the  fliip's  capacity^'and  valued  it  on  the  fliip. — There  have 
been  judicial  determinations,  and  one  upon  this  very  policy,  in  favour  of 
what  the  plaintiff  in  error  contends  for,  unreverfed,  and  unappealcd  from : 
people  probably  have  tranfacted  loftcs  upon  their  authority,  and  entered 
into  contratts,  according  to  the  fenfc  judicially  received:  in  mercantile 
contradts,   efpecially    for   the  fake   of  certainty,   it   is   better  to   adhere  to 

\i  deciftonsj 


PRIVATEER.  419 

decifions,  even  if  they  were  at  firft  erroneous  :  all  new  contrafts  are  made  in 
the  fenfe  of  the  judicial  determinations :  and,  fuppofing  an  interpretation 
at  firft  wrong,  it  becomes  afterwards  unjufl  to  vary  from  it,  and  highly 
inconvenient. 

Reafons  for  the  t)efendanL. 

(1.)  The  infurer  being  by  the  terms  of  the  policy,  free  from  all  avcrao-c, 
the  plaintiff  could  not  be  entitled  to  recover,  but  in  cafe  of  a  total  lofs ;  and 
the  {hip  being  found  by  the  fpecial  verdift,  to  be  in  gooA  fafety,  at  her  proper 
port,  at  and  after  the  end  of  the  four  months  for  which  the  infurance  was 
made,  there  could  be  no  fuch  lofs  : — (2.)  the  Jliip  alone  is  infured,  and  not  the 
cruife ;  and  to  contend  otherwife  is  not  only  contrary  to  the  exprefs  words, 
and  plain  meaning  and  intention  of  the  policy,  by  which  the  (hip  alone  is 
repeatedly  expreffed  to  be  the  thing  infured  ;  but  it  is  alfo  contrary  to  the 
nature  of  an  infurance ;  the  fafety  of  the  fliip  itfelf,  or  whatever  elfe  is  the 
immediate  objeft  of  the  infurance,  being  the  only  thing  infured ;  and  not 
any  uncertain  benefit  which  may  arife  to  the  owner  by  means  or  in  confequence 
of  it ;  nor  can  any  fuch  confequential  benefit  be  properly  the  fubjecl-matter 
of  infurance,  as  it  is  not  capable  of  being  eflimated  :  but, — (3,)  fuppofing  the 
cruife,  or  the  benefit  of  the  cruife,  or  the  free  ufe  of  the  fhip  for  the  cruife,  to 
be  the  thing  infured  ;  yet  even  of  any  of  thefe  there  is  no  lofs  ;  the  fliip 
having  a61ually  cruifed  till  within  about  a  fortnight  of  the  whole  time,  and 
having  taken  a  rich  prize  of  the  value  of  4,200!.  fterling :  and, — (4.) 
fuppofing  as  contended  for  by  the  plaintiff,  that  the  cruife,  or  benefit  of  the 
cruife,  or  the  free  ufe  of  the  fliip  for  the  cruife,  was  the  thing  infured  ;  and 
that  what  is  found  by  the  verdift  amounts  to  a  total  lofs  of  any  of  thefe  ; 
yet  it  is  not  found,  nor  is  it  averred  in  tlie  declaration,  that  Peter  Joyce,  for 
whofe  benefit  the  infurance  was  made,  had  any  intcrefi  in  the  cruife,  but 
only  in  the  fhip  itfelf;  and  to  recover  in  an  aftion  upon  a  valued  policy,  the 
plaintiff   muft  aver   an  interefl  in  his  declaration,  and  prove   it  at  the  triaL 

It  was  "  ordered  and  adjudged  by  the  lords,  that  the  judgment  given  in  the 

court  of  exchequer,  reverfing  a  judgment  given  in  the  court  of  king's  bench, 
be,  and  the  fame  is  hereby  affirmed  ;  and  that  tlie  record  be  remitted  :  and 
further  ordered,  that  the  plaintiff'  in  error  do  pay,  or  caufe  to  be  paid  to  thd 
defendant  in  error,  the  fura  of  5L  for  his  coffs  m  this  lioufe." — In  domo 
proccrum,  1  March  1754. — Fitzgerald  v.  Pole. 

5.  Remarks  on  the  preceding  cafe. — The  chief  thing  ncceffary  to  the 
forming  of  a  right  judgment  of  the  cafe  was,  to  flicw  wherein  the  zcords  of 
this  policy  differed  from  thqfe  of  other  policies  made  at  interefi  or  no  interefi. ; 
on  which,  in  cafes  fomewhat  like  this,  infurers  had  formerly  been  obliged 
to  pay  total  loffes  : — for  it  fhould  feem  that  when  this  caufe  was  heard,  it  was 
not  fufficiently  explained  to  the  judge  and  the  jury,  that  although  it  is  faid  in 
this  policy  that  the  :^S^\xxex^  ^\ox)Xd.\>z  free  of  average,  it  is  not  faid  therein 
that   the   infurance    fhould    be    xcithout    benefit    of  falvagc ;    which    claufe 

conffitutes 


420  P    R     I^V'^A    T     E     E     R. 

conftitutcs  the  main  dijfercnce  between  policies  made  on  intereft  or  no 
intereft,  and  thofe  made  on  real  intereft ;  a  renunciation  of  the  falvage 
being  never  made  in  the  latter: — -hence  on  fhips  infured  at  intereR  or  no 
intereR,  once  taken,  although  afterwards  retaken,  the  infurers  have  been 
condemned  to  pay  total  loH'es,  becaufe  they  renounced  the  benefit  of  falvage. 
— In  infurances  made  at  "  intered  or  no  intereft,  free  from  average,  and 
withoui  benefit  of  falvage"  (which,  though  they  are  very  hazardous,  high 
premiums  will  tempt  infurers  to  underwrite)  the  words  of  the  policies  clearly 
import,  that  fuch  infurances  are  to  be  underftood  merely  as  xoagers,  that 
the  (hips  (liall  make  the  voyages  mentioned  in  the  policies,  and  the  infurers 
fliall  have  nothing  to  do  with  averages  or  falvages :— if  in  the  prefent  cafe 
the  policy  had  been  made  with  this  condition,  "  not  to  have  any  benefit  of 
falvage,"  probably  the  court  of  exchequer,  confidering  the  literal  fenfe  of 
the  words,  and  the  former  decifion  on  fuch  policies^  might  have  confirmed 
the  fentence  given  in  the  court  of  king's  bench,  condemning  the  infurers 
to  pay  a  total  lofs ;  fince  the  fiiip,  for  the  time  the  mutineers  were  mailers 
of  her,  might  be  efleemed  as  lofl  to  the  owners,  and  the  infurers  had 
renounced  xht  falvage.^ — With  regard  to  the  cafe  of  Pond  v.  King,  cited  by 
the  plaintiff's  counfel,  where  a  (hip  being  taken,  though  afterwards  retaken, 
the  infurers  were  condemned  to  pay  a  total  lofs ;  it  is  to  be  obferved  that, 
in  the  prefent  cafe  of  Fitzgerald  v.  Pole,  it  is  only  faid,  that  it  was  an  infurance 
"  loft  or  not  loft,  free  from  all  average :"  in  Pond's  policy  (fee  Capture)  after 
the  words' to  be  "  free  of  average,"  follow  "  and  without  beneft  of  falvage ;" 
which  this  policy  has  not : — in  fome  of  the  other  cafes  of  intereft  or  no 
intereft  policies,  (that  were  referred  to)  a  ftop  is  made  after  the  words  "  free 
of  average  \''  and  perhaps  they  might  contain  the  other  condition  alfo, 
"  without  benefit  of  falvage  ;"    fo  that  all  thofe  policies  might  differ  from  the 

prefent  one,   and  prove  nothing  in    it's   favour. Mifinformation  perhaps 

led  the  infured  to  try  whether  this  valued  policy  would  not  have  the  fame 
effcft  as  other  policies  made  on  "  intereft  or  no  intereft  with  the  conditions 
to  be  free  of  average,  and  zvithout  benefit  of  falvage,"  by  virtue  whereof 
the  infurers  had  in  a  parallel  cafe,  been  condemned  to  pay  a  total  lofs  ; 
and  it  fo  happened  that  the  jury  mifwuiderftanding  the  thing,  on  the  firft 
hearing  of  this  caufc  in  the  court  of  king's  bench,  gave  a  verdift  for  a  total 
lofs. The  afore-mentioned  caufe,  being  of  confiderable  importance,  natu- 
rally occafioned  much  fpeculation,  and  fome  perfons  were  of  opinion  that  the 
llipulation  to  be  free  from  average,  did  not,  however,  free  the  infurers  from  the 
actual  lo/s  fuftained  by  the  barratry  and  mutiny  of  the  mariners,  in  depriving  the 
captain  of  the  command,  and  running  away  with  part  of  her  fire  arms,  and 
boats: — ^tliis,  they  faid,  was  no  average,  but  ought  to  be  confidered  as  a 
■partial  lofs,  for  which,  as  alfo  for  the  confumption  of  the  provifions  by  the 
mutineers  whilft  they  had  the  command  of  the  (hip,  the  infurers  ought  to 
have  been  deemed  liable  to  pay?  for  that  Z'^rr^/rv  and  inutiny  were  never 
comprehended  under  tht  word  average,  and  that  it  could  only  be  meant, 
in  this  cafe,  that  the  infurers  fliould  be  free  of  all  damages  refulting  from 
ihecruife,  by  the   fliip's  either  atuieking,   or  being  .attacked,   crowding  fail, 

or 


PRIVATEER. 


421 


or  chafing,  and  thereby  lofing  or  breaking  any  thing,  or  by  boarding,  running 
foul  of  other  veffels,  receiving  fliot  in  her  hull  and  rigging,  &c. :  they  faid  alfo 
that,  although  it  might  be  prudent  for  infurers,  in  time  to  come,  to  have  a  claufe 
inferted  in  policies  on  privateers,  not  to  be  liable  to  bear  any  loffes  refulting 
from  the  mutiny  and  difobcdience  of  the  crews,  it  was  not  done  in  this  cafe. 

But>  where  is  the  difference  between  an  average  and  a  partial  lofs  ? — 

And  as  to  mutiny  and  barratry,  it  is  agreed  that  they  are  not  terms 
fynonimous  with  the  word  average  ;    but  they  were  to  be  confidered,  in  this 

cafe  (like  other  robberies)  as  the  caiifes  of  the  average. It  is  no^v  ufual 

to  infert  in  policies  on  privateers  a  claufe  to  the  following  effeft  only,  viz. 
"  free  of  average  from  any  engagement  with  enemies  ;"  fo  that  the  under- 
writers are  anfwerable  for  the  averages  which  happen  from  all  other  caufes. 

6.  All  the  comiiianders  of  private  men  of  war  (hall  from  henceforth  be 
obliged,  before  they  receive  their  commilfions,  to  enter  before  a  competent 
judge,  good  and  fufficient  fecurity  by  able  and  refponfible  men,  who  have 
no  part  or  interefl;  in  fuch  fliip,  in  the  fum  of  fifteen  hundred  pounds  llerling, 
or  fixteen  thoufand  five  hundred  guilders  ;  and  when  they  have  above  one 
hundred  and  fifty  men,  then  in  the  fum  of  three  thoufand  pounds  fterling,  or 
three  and  thirty  thoufand  guilders,  that  they  will  give  full  fatisfaftion  for  any 
damages  or  injuries  whatfoever,  which  they  or  their  officers,  or  others  in 
their  fervice  (liall  commit  in  their  courfes  at  fea,  contraiy  to  this  prefent 
treaty,  or  any  other  whatfoever,  between  his  majefty  and  the  States,  and 
upon  pain  of  revocation  and  annulling  their  faid  commiffions ;  in  which 
it  fhall  be  always  inferted,  that  they  have  given  fuch  fecurity  as  abovefaid  ; 
and  likewife  it  is  agreed,  that  the  fhip  itfelf  (hall  be  alfo  liable  to  make 
fatisfa6tion  for  injuries  and  damages  done  by  her. — Treaty  with  Holl.  1674. 

7.  It  fliall  not  be  lawful  for  any  foreign  privateers  (not  being  fubjefts  of 
one  or  of  the  other  of  the  confederates)  who  have  commiffions  from  any  other 
prince  or  flate  in  enmity  with  either  nation,  to  fit  their  ffiips  in  the  ports  of 
one  or  the  other  of  the  aforefaid  parties,  to  fell  what  they  have  taken,  or 
in  any  other  manner  whatfoever  to  exchange  either  fhips,  merchandifes,  or 
any  other  ladings ;  neidier  fliall  they  be  allowed  even  to  purchafe  victuals, 
except  fuch  as  Ihall  be  necelfary  for  their  going  to  the  next  port  of  that 
prince  from  whom  they  have  commiffions. — Treaty  with  France,   1713. 

8.  It  ffiall  not  be  lawful  for  the  fubjefts  of  either  king,  or  the  inhabitants 
of  the  kingdoms  and  countries  under  their  obedience,  to  get  letters  patent, 
commonly  called  comviijjions  of  letters  of  rcprifals,  from  any  prince  or  flate, 
with  whom  either  of  the  confederates  is  at  variance  or  in  open  war ;  much 
lefs  by  virtue  of  thofe  letters  to  moleft  or  damnify  the  fubjefts  of  either 
party  :  and  each  of  the  faid  kings  of  Great-Britain  or  Denmark  ffiall  ftriftly 
forbid  their  refpeftive  fubjefts,  to  get  or  accept  of  any  fuch  commiffions 
from  other  princes  or  ftates  ;  and  enjoin  them  to  hinder,  as  much  as  in 
them  lies,  all  depredation  that  might  be  made  by  virtue  of  fuch  commiffions. 
— Treaty  xcith  Denm.  1669. 

^  L  9.     Remark. 


422 


R        1        Z        E. 


o.  Remark. — It  is  In  general  very  dangerous  to  underwrite  privateers, 
efpecially  thofc  of  fmall  force,  which  are  commonly  very  ill  fitted  out  and 
ftored,  often  by  perfons  of  defperate  fortunes,  or  fmall  property,  folely  on 
credit,  and  infured  at  high  valuations  ;  fo  that  the  temptation  of  lofing,  or 
yielding  them  to  the  enemy,  or  putting  them  in  the  way  of  being  taken, 
particularly  when  the  firft  part  of  the  cruife  proves  unfuccefsful,  is  fometimes 
too  powerful  to  be  refifted. 

lo.  See  Capture,  CommiJJion  of  Marque,  Cruife,  Crufer,  Fraud,,  Hojiilily, 
Infuraiice,  Interejl  or  no  Interejl,  Law  of  Nations,  Letter  of  Marque,  Neutral 
Ship  or  Property,  Paffport,  Policy,  Reprifal,  Ships  of  War,  Treaty,  Valu- 
ation,  Wager. 

PRIZE. 

J.  T)  RI  Z  E  S  are  of  three  forts,  viz.—'i.  fhips  and  goods  taken  by  letters 
-■-  of  marque,  and  by  jus  reprifaliarum ; — '2.  thofe  taken  from  pirates 
or  fea  rovers  ;  and — 3.  thofe  taken  from  profefTed  enemies  : — the  firll  belong 
entirely  to  the  captors,  after  a  legal  condemnation  ;  as  the  fecond  does  after 
an  account  thereof  is  given  to  the  admiral ;  and  the  third  were  to  be 
proceeded  in,  according  to  the  power  which  authorifed  the  capture. — Molloy. 

It  has  alfo  been  granted  to  companies,  to  appropriate  the  prizes  made 

in  confequcnce  of  an  infringement  of  their  charters ;  as  to  the  Eafl-India 
company — (7  Geo.  1.  c.  21.  f  1.  3  Geo.  2.  c.  14.  f.  9)  who  have  a  right  to 
all  fhips,  &c.  trading  within  their  limits,  for  which  they  may  fue  in  any  of 
the  courts  at  Weftminfler  ;  as  that  of  the  South-Sea  may,  though  their  grant 
is  yet  more  ample. — (9  Ann,  c.  21.  f.  51.) 

2.  In  cafe  of  prizes  in  time  of  war,  between  our  own  nation  and  another, 
or  between  two  other  nations,  which  are  taken  at  fea,  and  brought  into  our 
ports,  the  courts  of  ad^niralty  have  an  undifturbed  and  exclufive  jurifdiftion 
to  determine  the  fame  according  to  the  law  of  nations  (2  Shozo.  232.  Comb.  474) 
3  Black.  Comm.  io8. 

3.  In  order  to  avoid  all  illegal  proceedings,  but  to  aft  with  due  regularity 
and  conformity  with  the  tenor  of  the  letters  granted,  whenever  a  prize  is 
taken,  and  brought  infra  prcefdia,  the  captor  mufl  exhibit  all  the  fhip's 
papers  and  captivated  mariners  to  be  examined  in  order  to  adjudication ; 
till  when  bulk  ought  not  to  be  broken,  nor  may  the  captain  of  the  captor 
fulfer  any  embezzlement  of  the  lading,  or  fell,  barter,  or  difpofe  of  any 
part  without  commiffion. — No  prize  can  be  difpofed  of,  nor  any  of  her  cargo 
touched,  till  after  a  legal  condemnation  in  the  court  of  admiralty  here,  or 
elfewhcre. — Lex,  Merc,  rediv.  207,  237. 

4.  By  the  laws  of  nations  generally  all  things  are  the  captor's  which  he 
Ukes  from  the  enemy,  or  which  his  enemies  gained  from  another  by  force 

of 


PRIZE.  AO'] 

of  arms ;  fo  likewife  all  thofe  goods  that  he  (hall  find  in  his  enemy's  cuftody  ; 
but  then  it  muft  be  apparently  manifell,  and  evidently  proved,  that  it  is 
really  the  enemy's  :  for  if  an  Englifliman  fhould  have  goods  in  the  cullody 
of  a  Dutch-faftor  at  Cadiz,  and  a  war  fhould  break  out  between  that  prince 
and  that  republic,  yet  are  not  the  goods  of  the  Englifhman  fubjeft  to  the 
feizure  of  the  Spaniard,  it  being  apparent,  that  the  owner  is  not  a  fubjeft  of 
their  enemies :  fo  likewife  if  the  goods  of  friends  are  found  in  the  fhips  of 
enemies,  this  does  not  ipfo  fafto  fubjetl;  the  fame  to  be  prize  by  the  law  of 
nations  ;  though  it  be  a  violent  prefumption,  and  may  juftly  bear  a  legal 
examination,  till  which  there  may  be  a  fecuring  of  the  prize,  till  adjudication 
fliall  pafs. — So  on  the  other  hand,  if  the  JJiips  of^  friends  fliall  be  freighted 
out  to  carry  the  goods  of  enemies,  this  may  fubjeft  them  to  be  prize, 
efpecially  if  the  goods  fhall  be  laden  aboard  by  the  confent  or  privity  of  the 
mafler  or  (kipper:  though  in  France  they  have  fubjefted  and  involved  the 
innocent  with  the  nocent,  and  made  both  of  them  prize. — In  the  late  Flemifh 
wars  with  England,  the  Oftenders  became  obfequioufly  ferviceable  with 
their  fhips  to  the  traffic  and  commerce  of  both  nations  :  memorable  was  the 
aftion,  when  the  war  was  between  the  two  republics,  Venice  and  Genoa, 
the  Grecian  fliips  being  then  employed  (as  thofe  of  Oftend)  were  fearched, 
and  the  enemies  pulled  out,  but  no  other  matter  done :  however  it  is  moft 
certain,  let  the  commilfion  or  proteftion  of  fuch  fhips  be  what  they  will,  if 
men  will  venture  to  trade  under  fuch  a  cloak^  it  behoves  them^  that  the 
fkipper  and  his  crew  be  entirely  ignorant ;  for  it  is  his  aftion  that  will  go 
far  in  the  freeing,  or  making  abfolute  the  prize,  and  goods  fo  made  prize ; 
the  property  is  immediately  gone  and  changed,  be  the  owner  who  he  will, 
he  never  can  claim  the  fame  ;  for  the  laws  of  nations  made  the  enemies  firft 
mafters  by  external  dominion,  and  then  by  conqueft  gave  the  property  to 
the  captor  :  following  that  judgment  of  the  Romans,  "  whatfoever  they  got 
of  their  enemies  by  valour,  they  would  tranfmit  to  their  pofterity  by  right." 
— MoUoy,  b.  1.  c.  1.  f.  12,. 

5.  Here  a  queflion  is  moved,  vjhen  is  it  that  things  are  faid  to  be  taken 
by  the  right  of  war,  and  are  juftly  deemed  to  belong  to  him  who  is  in 
pofFeffion  of  them  ? — Grotitts  anfwers  as  a  civilian,  that  a  man  is  deemed  to 
have  taken  moveable  things  by  the  right  of  war,  "  as  foon  as  they  are  fecured 
from  the  purfuit  of  the  enemy ;  or  when  he  has  made  himfelf  mafter  of  them 
in  fuch  a  manner,  that  the  firft  owner  has  loft  all  probable  hopes  of  recovering 
them :  thus,  fays  he,  at  fea,  fhips  and  other  things  are  not  faid  to  be  taken, 
till  they  are  brought  into  fome  port  or  harbour  belonging  to  us,  or  to  fome 
part  of  the  fea  where  our  fleet  rides ;    for  it  is  only  then  that  the  enemy 

begins  to  defpair  of  recovering  them." But,  in  my  opinion,  this  manner  of 

anfwering  the  queftion  is  altogether  arbitrary,  and  has  no  foundation  in 
nature  :  I  fee  no  reafon  why  the  prizes  taken  from  the  enemy,  fliould  not 
become  our  property  as  foon  as  they  are  taken :  for  when  two  nations  are  at 
war,  both  of  them  have  all  the  requifites  for  the  acquifition  of  property,  at 
the  very  moment  they  take  a  prize :  they  have  an  intention  to  acquire  a  title 

of 


424 


R        I        Z        E. 


of  juft  property,  namely,  the  right  of  war;  and  they  are  actually  \r\  pojfejidii 
of  the  thing : — but  if  the  principle  which  Grotius  fuppofes,  was  to  be  allowed, 
and  the  prizes  taken  from  the  enenvy  were  not  deemed  a  lawful  acquifition, 
'till  they  are  tranfported  to  a  place  of  fafety,  it  would  follow,  that  the  booty 
which  a  fmall  number  of  foldiers  has  taken  from  an  enemy,  may  be  retaken 
from  tliem  by  a  ftronger  body  of  troops  of  the  fame  party,  as  Rill  belonging 
to  the  enemy,  if  this  fecond  body  of  troops  has  attacked  the  firft  before  they 
had  conveyed  their  booty  to  a  place  of  fafety : — this  laft  circumflance  is 
therefore  altogether  indifferent,  with  refpeft  to  the  prefent  queflion :  the 
greater  or  fmaller  difficulty  the  enemy  may  find,  in  recovering  what  has  been 
taken  from  him,  does  not  hinder  the  capture  from  aftually  belonging  to  the 
conqueror :  every  enemy  as  fuch,  and  fo  long  as  he  continues  fuch,  always 
retains  the  will  to  recover  what  the  other  has  taken  from  him  ;  and  his  prefent 
inability  only  reduces  him  to  the  neceffity  of  waiting  for  a  more  favourable 
opportunity,  which  he  flill  feeks  and  defires :  hence,  with  refpeft  to  him,  the 
thing  ought  no  more  to  be  deemed  taken,  when  in  a  place  of  fafety,  than 
when  he  is  ftill  in  a  condition  of  purfuing  it :  all  that  can  be  faid  is,  that  in 
the  latter  cafe,  the  pofTeflTion  of  the  conqueror  is  not  fb  fecure  as  in  the 
former : — the  truth  is,  this  diflinftion  has  been  invented  only  to  cflablifli  the 
rules  of  the  right  of  pojtliminy,  or  the  manner  in  which  the  fubjefts  of  the 
Hate,  from  whom  fomething  has  been  taken  in  war,  re-enter  upon  their  rights ; 
rather  than  to  determine  the  time  of  the  acquifition  of  things  taken  by  one 
enemy  from  another.  This  to  me  feems  to  be  what  the  law  of  nature  deter- 
mines in  this  point. Grotius  obferves  alfo,  that  by  the  cuflom  eflabliflied  in 

his  time  among  the  flates  of  Europe,  it  is  fufficient  that  the  prize  has  been 
txcenly-four  hours  in  the  enemy's  polfcfTion,  to  account  it  loft.  Thuanus,  in 
his  hiflory  on  the  year  1595,  gives  us  an  example,  that  this  cuflom  was 
obferved  alfo  by  land  :  the  town  of  Li^re  in  Brabant  having  been  taken  and 
retaken  the  fame  day,  the  plunder  was  returned  to  the  inhabitants,  becaufe  it 
had  not  been  twenty-four  hours  in  the  hands  of  the  enemy  :  but  this  rule  was 
afterwards  changed,  with  refpeft  to  the  United  Provinces ;  and  in  general  we 
may  obfervc,  that  every  fovereign  has  a  right  to  eflablilli  fuch  rules,  in  regard 
to  this  point,  as  he  thinks  proper,  and  to  make  what  agreements  he  pleafes 
with  other  powers :  there  have  been  feveral  made,  at  different  times,  between 
the  Dutch  and  Spaniards,  the  Portuguefe  and  the  northern  flates. — Grotius 
applies  thefe  principles  alfo  to  lands ;  they  are  not  to  be  reputed  lofl  as  foon 
as  thev  are  feized  on,  but  for  this  effeft  they  are  to  be  fo  fecured  with  durable 
fortifications,  that,  without  being  forced,  they  cannot  be  repoffeffed  by  the 
firft  owner :  but  to  this  cafe  we  may  alfo  apply  the  refleftions  already  made : 
a  territory  belongs  to  an  enemy  as  foon  as  he  is  mafler  of  it,  and  as  long  as 
he  continues  in  polleflion  of  it ;    the  greater  or  leffer  precautions  he  may  take 

to  fecure  it,  are  nothing  to  the  purpofe. But  be  this  as  it  may,  it  is  to  be 

obferved,  that  during  the  whole  time  of  the  war,  the  right  we  acquire  over  the 
things  we  have  taken  from  the  enemy,  is  of  force  only  with  refpetl  to  a  third 
difmterefled  party ;  for  the  enemy  himfelf  may  retake  what  he  has  loft, 
whenever  he  finds  ai)  opportunity,  till  by  treaty  of  peace  he  has  renounced 

all 


PRIZE.  ^25 

all  his  pretenfions :  it  is  alfo  certain,  that  in  order  to  appropriate  a  thing  by 
the  right  of  war,  it  mufl  belong  to  the  enemy  ;  for  things  belonging  to  people 
who  are  neither  his  fubjetls,  nor  animated  with  the  fame  fpirit  as  he  againft 
us,  cannot  be  taken  by  the  right  of  war,  even  though  they  are  found  in  the 
enemy's  country :  but  if  neutral  flrangers  furnifh  our  enemy  with  any  thing, 
and  that  with  a  defign  to  put  him  into  a  condition  of  hurting  us,  they  may 
be  looked  upon  as  taking  part  with  our  enemy,  and  their  effetls  may  confe- 
quently  be  taken  by  the  right  of  war. — It  is,  however,  to  be  obferved,  that 
in  dubious  cafes  it  is  always  to  be  prefumed,  that  what  we  find  in  the  enemy  s 
country,  or  in  \htirJ1aps,  is  deemed  to  belong  to  them ;  for  befides  that  this 
prefumption  is  very  natural,  if  the  contrary  maxim  was  to  take  place,  it 
would  lay  a  foundation  for  an  infinite  number  of  frauds  :  but  this  prefumption, 
however  reafonable  in  itfelf,  may  be  deftroyed  by  contrary  proofs : — neither 
do  the  J'lips  of  friends  become  lawful  prizes,  thoughjome  of  the  enemy  s  effeEls 
are  found  in  them,  unlefs  it  is  done  by  the  confent  of  the  owners ;  who  by 
that  means  feem  to  violate  the  neutrality  or  friendlhip,  and  give  us  a  juft 
right  to  treat  them  as  an  enemy, — But,  in  general,  we  mull  obferve,  with 
refpeft  to  all  thefe  queftions,  that  prudence  and  good  policy  require,  that 
fovereigns  (hould  come  to  fome  agreement  among  themfelves,  in  regard  to 
thefe  different  cafes,  in  order  to  avoid  the  difputes  which  may  arife  from  them. 
— Let  us  alfo  take  notice  of  a  confequence  of  the  principles  here  eflablifhed; 
which  is,  that  when  we  have  taken  things  from  the  enemy,  which  he  himfelf 
had  taken  from  another  by  the  right  of  war,  the  former  poflefTor  cannot  claim 
them. — Burlam.  Prin.  of  Polit.  Law,  295. 

6.  Prizes  mull  be  condufted,  or  fent  into  the  port  where  the  captor's 
Ihip  was  fitted  out,  or  into  fome  other  port  of  the  kingdom. — Ordin.  of  France, 

7.  In  Denmark,  there  is  a  very  extraordinary  regulation,  of  the  5th  of 
April  1710,  forbidding,  under  pain  of  death,  to  condu6l  prizes  any  where, 
but  into  a  port  of  the  kingdom. 

8.  Any  perfon,  who  in  time  of  war,  buys  a  prize,  that  has  not  yet  been  in 
any  free  or  neutral  river  and  port,  and  makes  alTurance  on  the  fame,  is  obliged 
to  exprefs  that  circumflance  in  the  policy,  for  want  whereof,  the  affurance 
fhall  be  deemed  of  no  efficacy  nor  value. — Ordin.  of  Hamb. 

9.  All  (hips  which  (hall  be  found  loaded  with  effefts  belonging  to  our 
enemies,  and  the  goods  of  our  fubjefts  or  allies  which  fhall  be  found  in  an 
enemy's  (hip,  (hall  be  equally  good  prize. — Ordin.  of  France. — Ordin.  of  Spain. 

10.  The  firll  part  of  the  laft-mentioned  regulation  is  peculiar  to  France 
and  Spain ;  (it  hath,  however,  been  departed  from  by  article  5.  of  the 
regulation  in  France  of  the  21  ft  of  Oftober  1744,  relative  to  her  treaties  with 
fome  particular  powers:) — everywhere  elfe,  only  the  goods  of  the  enemy,  on 
board  the  (hip  of  a  friend  or  neutral  fubje6t  are  liable  to  confifcation  ;  and  the 

5  M  ufagc 


426  P       R        O       F       IT. 

ufage  is  likewife  to  pay  tlie  freight  to  the  captain  of  fuch  (hip  : — the  lafl  part 
of  the  faid  reguhition  is  alfo  deemed  jufl,  becaufe  as  foon  as  goods  are  put  on 
board  an  enemy's  fhip,  they  are  fubmitted  to  the  fame  fate  as  the  (hip  (hati 
have  ;  befides  that  the  owners  of  the  goods  are  to  be  looked  upon  as  favour- 
ing the  navigation  and  commerce  of  the  enemy, — 2  Valin's  Comm.  253. 

11.  See  Prelim.  Difc.  81.  Admiralty  &  Admiralty-Court,  Appeal,  Capture, 
Colony,  Condeimiation,  Conjifcation,  Contraband,  Enemy,  Freedom  of  Navigation, 
Law  of  Nations,  Letter  of  Marque,  Mafqued  Ship  or  Property,  Mtftakc, 
Morocco,  Neutral  Ship  or  Property,  Piracy  and  Pirate,  Privateer,  Prohibited 
Goods,  Recapture,  Reprifal,  Salvage,  Ships  of  War,  Tripoly,  War. 


PROFIT. 

1.  T^HE  laws  of  infurance  were  made  in  order  to  ^r&\en\.  frauds,  and 
-^  unlefs  we  obferve  them  very  ftriftly,  a  door  is  opened  to  fraud  and 
villanies :  they  were  further  made  that  the  ini'ured  may  remain  indemnified, 
not  in  order  that  they  may  reap  gain  ;  and  not  therefore  to  fecure  that  gain 
which  they  only  hope  for : — for  profit  that  is  hoped  for  is  exceedingly 
uncertain;  the  damages  that  happen  may  be  afcertained,  but  profit  that  we 
do  not  receive,  cannot :  wherefore  there  is  the  greateft  reafon  for  an  infurance 
in  the  firft  cafe,  but  none  in  the  laft :  fuch  laws  being  enafted  for  public 
utility  cannot  be  fubverted  by  private  agreements,  and  each  individual  making 
agreements  contrary  to  them,  a6ls  illegally ;  and  for  that  reafon  fuch  agree- 
ments are  by  the  law  itfelf  refcinded. — I  applaud  the  merchant  who  keeps 
his  promife,  though  made  contrary  to  law ;  but  I  alfo  applaud  the  judge  who 
does  not  encourage  the  frauds  and  villanies  of  merchants,  and  who  refcinds 
agreements  which  the  law  ordains  to  be  refcinded  :  it  is  the  bufinefs  of  a  judge 
to  inforce  the  law,  and  not  to  enquire  whether  the  infurer  who  violates  his 
faith  afts  difhonorably  or  not :  be  it  that  he  afts  diflionorably  ;  but  he  alfo 
does  the  fame  who  makes  agreements  contrary  to  law. — Bynkerflioek,  Qxicefl. 
Jar.  Priv.  lib.  4.  c.  5. 

2.  No  infurance  is  allowed  to  be  made  on  any  wagers,  wherein  all 
imagined  or  imaginary  profits  are  undcrftood  to  be  included. — Ordin.  of  Rott. 

3.  Merchants  fhall  not  have  infurance  made  on  an  expeded  profit  on 
their  goods. — Ordin.  of  France. 

4.  No  infurances  are  to  be  allowed  on  uncertain  and  precarious  things, 
or  imaginary  or  fuch  kind  of  profit. — Oj-din.  of  Copenh. 

5.  The  imaginary  profit  any  one  promlfes  himfelf  on  his  intereft  in  a 
cargo,  mud  be  valued  in  the  policy,  with  explication  zohich  goods  it  is 
expefted  from ;  but  no  returns  of  premium  for  the  fame  fhall  be  demanded. 
— Ordin.  of  Amjl. 

6.    Remarks. 


PROHIBITED      GOODS.  427 

6.  Remarks. — Infurances  on  profit  diftinftly,  zx^di  feparatdy  from  the 
goods,  are  frequently  made,  and  at  the  fame  premium  as  the  goods  them- 
felves :  but  infurancesyo  made  on  profit  are  very  fimilar  to  thofe  on  intereji 
or  no  intere/l,  with  the  claufe  of  the  underwriters  h&ing  free  from  average,  and 
without  benefit  of  falvage  r — &nd  in  cafe  of  any  accident  in  the  courfe  of  the 
voyage,  that  (liould  overfet  it,  or  difenable  the  fame  fhip  to  carry  the  goods 
to  the  deftined  port,  akhough  they  (hould  perhaps,  after  confiderable  delay, 
be  conveyed  there  by  other  means,  or  arrive  damaged  only  in  part,  or  if  they 
fhould  be  delivered  and  fold  at  another  port,  &c.  yet,  in  all  fuch  cafes,  the 
underwriters  on  profit,  feparately  infured,  might  be  liable  to  pay  a  total  lofs ; 
whilfl  thofe  who  have  infured  on  the  goods,  might  be  fubjeft  only  to  a  fmall 
average,  or  partial  lofs :  and  therefore  it  feems  very  clear,  that  the  hazard  on 
profit  is  generally  greater,  and  may  in  many  particular  inflances,  be  much 
greater  than  on  the  goods ;  confequently,  that  larger  premiums  ought  to  be 
given  on  profits,  according  to  the  nature  and  probable  circumftances  of  the 
voyage :  the  fame  may  be  obferved,  in  feveral  refpefts,  with  regard  to  infu- 
rances on  commijjion. — But  as  to  profit,  as  infurances  thereon  feparately  from 
the  goods,  are  commonly  made  for  the  account  of  the  proprietor  of  the 
goods,  and  may,  in  certain  cafes  and  events,  be  liable  to  occafion  differences 
and  difputes,  about  the  true  conftruftion  and  effeft  of  fuch  infurances,  the 
more  fair  and  eligible  method  undoubtedly  is,  to  put  a  valuation  on  the  goods, 
in  the  policy  (by  adding  the  fuppofed  profit  to  the  coft,  &c.)  at  the  time  of 
making  the  infurance  ; — or  if  the  goods  and  profit  be  infured  feparately,  and 
any  fuch  event  happen,  as  before  mentioned,  the  whole  ought  to  be  deemed 
and  made  a  confolidated  interefl :  for  otherwife,  profit  only,  being  uncertain 
and  imaginary,  an  infurance  thereon  would  be  an  infurance  without  interelf, 

and  confequently  void  as  within  the  flat.    19  Geo.  1.  c.  37. There  is  alfo 

danger  to  be  apprehended  of  what  has  in  facl  fometimes  happened,  that 
double  and  even  treble  infurances  may  be  made  on  the  fame  imaginary 
profit,  or  on  commiffion  in  different  places,  by  the  orders  of  perfons  who  may 
have  the  direftion,  or  a  private  knowledge  of  the  circumftances  of  the 
voyage  ;  and  whofe  intentions  in  fuch  cafes  mufl  unquefl;ionably  be  fraudulent. 

7.  See   Prelim.   Difc.  ^6.    Bottomry,  Event,  Fraud,  Freight,   Infurance, 
Interefi,  Interefi  or  no  Interefi,  Valuation,  Wager. 


PROHIBITED       GOODS. 

1.  TF  prohibited  goods  are  laden  aboard,  and  the  merchant  infures  upon  the 
-■-  general  policy  ;  whether,  if  fuch  goods  be  \a.v!{u[\y  feized  as  prohibited 
goods,  the  infurers  ought  to  anfwer  ? — It  is  conceived  they  ought  not :  and 
the  difference  hath  been  taken,  where  goods  are  lawful,  at  the  time  of  lading, 
to  be  imported  into  that  country,  which  they  are  configned  for ;  but  by 
matter  expoflfaUo,  after  the  lading  they  become  unlawful,  and  after  arrival  are 
feized,  there  the  afiurers  mufl  anfwer,  by  virtue  of  the  claufe,  "  and  all  other 
perils,  &c. :"  but  if  the  goods  were  at  the  time  of  lading  unlawful,   and  the 

lader 


428  PROHIBITED      GOODS. 

lader  knew  of  the  fame,  fuch  afTurance  will  not  oblige  the  affurers  to  anfwci 
the  lofs  ;  for  the  fame  is  not  fuch  an  afTurance  a^  the  law  fupports,  but  is  a 
fraudulent  one. — Molloy,  b.  2.  c.  7.  f.  15. 

2.  Case. — A  policy  was  made  from  Cadiz  to  Vera  Cruz  in  New-Spain, 
upon  monies  lent  upon  bottomry,  and  upon  any  kind  of  goods  and  merchandife 
whatfoever,  laden  aboard  the  good  (hip  called  the  Neuftra  Seignora  del 
Carmen  and  Mary  Magdalen,  the  adventure  beginning  immediately  from  the 
lading  before  a  day  to  come,  and  the  monies  from  the  time  they  were  to  be 
lent,  and  fo  continue  from  Cadiz  to  Vera  Cruz,  and  until  delivery,  with 
provifo  to  ftay  at  any  port  or  place  in  her  voyage,  and  likewife  to  touch  at 
Porto  Rico,  and  there  to  lade  and  unlade  without  any  prejudice  to  the  infu- 
rance,  the  cargo  being  valued  at  1,7001.  fterling,  without  account,  &c. : — the 
fliip  being  laden  at  Cadiz,  departed  towards  Vera  Cruz,  and  before  arrival 
there,  touching  at  Porto  Rico,  the  goods  were  there  feized  and  arrefled : — in 
an  aftion  brought  upon  the  policy,  the  defendant  pleaded,  that  the  fliip,  at  her 
arrival  at  Porto  Rico,  was  laden  with  prohibited  goods  and  merchandife, 
■which  together  with  the  fliip,  became  forfeited  by  default  of  the  proprietors, 
and  were  there  feized  and  taken : — the  queftion  was,  if  the  owners  fliould 
infure,  and  then  order  prohibited  goods  to  be  laden,  whether,  if  thefe  goods 
are  feized,  they  fhould  recover  againfl  the  infurers  ?  the  fecond  objeftion  was, 
if  (as  the  defendant  had  pleaded  this  plea)  the  fame  were  good  ? — as  to  the 
firft,  the  court  did  all  incline,  that  the  infurance  ought  to  be  bona  fide,  i.  e. 
the  reftraint  ought  to  be  of  fuch  goods  as  by  laxo  were  not  reftrainable : 
but  furely  that  cannot  be  ;  for  the  intention  of  policies  are  to  warrant  the 
perils  of  all  manner  of  goods,  in  all  manner  of  cafes  ;  fo  that  if  there  be  a 
loading  bona  fide,  be  it  prohibited  or  not,  the  fame,  in  cafe  of  lofs,  ought  to 
be  anfwered,  unlefs  it  were  a  fraudulent  contrivance  :  but  to  the  fecond,  it 
was  refolved  that  the  plea  was  infufficient,  for  admitting  the  fame  fliould  not 
oblige  the  infurer,  yet  becaufe  the  defendant  did  not  fliew  that  the  goods 
were  laden  either  by  the  infured,  or  by  the  faftor  or  order  (for  otherwife 
the  fame  fliould  not  conclude  them ;  becaufe,  perhaps,  the  mafter,  or  his 
mariners,  or  a  ftranger,  might  load  them  on  board  without  order)  the  court 
gave  judgment  for  the  plaintiff  upon  the  mere  infufficiency  of  the  manner  of 
pleading,  and  not  of  the  matter. — Cunningh.  Laio  of  Bills,  &c»  andhifur.  214. 
cites  Molloy. 

3.  Case.— But  if  a  merchant  will  freight  out  wool,  leather,  and  the  like, 
or  fend  out  goods  in  a  foreign  bottom,  and  then  infures,  and  afterwards  the 
fliip  happens  to  be  taken,  by  reafon  of  which  the  fliip  and  lading  are  forfeited, 
the  infurers  fliall  not  anfwer  the  damage ;  "  for  the  very  foundation  was 
illegal  7m^  fraudulent,  and  the  law  only  fupports  thofe  affurances  that  are 
made  bona  fide  ;  for  if  it  were  otherwife,  and  men  could  infure  againfl;  fuch 
aftions,  it  would  deflroy  trade,  which  is  diredtly  to  thwart  the  inftitution  and 
true  intention  of  all  policies  of  affurance." — Molloy,  b.  2.  c.  7.  f.  15.  Hil.,31, 
32.  Car.  2.  B.  R. — Houhland  v.  Harrifon. — Like  judgment  was  given  againft 
Leihidier  ad  f.  Houbland,  Trin.  32.  Car.  2.  in  B.  R.  Rot.  i68. 

4.    Lord 


PROHIBITED      GOODS. 


429 


4.  Lord  Chancellor  faid, — it  is  certainly  a  general  rule  that  a  plaintiff" 
mufl  come  into  equity  with  clean  hands  ;  and  fevcral  cafes  at  common  law 
and  in  equity  have  gone  upon  this,  that  if  the  contraft  relates  to  an  illicit 
fubjeft,  the  court  will  not  fo  encourage  the  aftion,  as  to  give  a  remedy  : — 
nor  is  it  any  anfwer  to  fay  that  the  defendant  knCio  of  this  illegality  ;  for  that 

anfwer  would  ferve  in  all  thefe  cafes. Pie  faid  further, — no  determination 

has  been,  that  infurance  on  enemies  fhips,  during  the  war,  is  unlawful :  it 
might  be  going  too  far  to  fay,  all  trading  with  enemies  is  unlawful ;  for  that 
general  do6lrine  would  go  a  great  way,  even  where  only  Englijh  goods  are 

exported;  and  none  of  the  enemy's  imported,  which  may  be  very  beneficial ; 

there  have  been  feveral  infuranccs  of  this  fort,  during  the  mar,  which  a  deter- 
mination on  that  point  might  hurt : — as  to  the  cafe  of  infurance  on  xoool 
tranfported  to  France,  I  never  doubted  but  that  was  an  unlawful  contract. 
— 1  Vefeyo^x^. 


5.  By  Stat.  4  &  5  Will.  &  Mary.  c.  ir^.  f.  14. — All  perfons  who  by  wav  of 
infurance  or  otherwife,  fhall  undertake  to  deliver  any  goods  imported  from 
beyond  fea,  without  paying  the  duties  payable  for  the  fame,  or  any  prohibited 
goods,  or  fliall  deliver  the  fame  as  aforefaid,  knowing  thereof,  and  all  their 
abettors,  {hdXX  forfeit  500I.  above  the  forfeitures  to  which  they  are   already 

liable. ^S.  15.  All  M'ho  fliall  agree  to  pay  any  money  for  the   infuring  or 

conveying  any  goods  imported,  without  paying  the  duties,  or  any  prohibited 
goods,  or  fliall  receive  fuch  prohibited  goods,  or  fuch  other  goods  before  the 
duties  are  paid,  knowing  thereof,  fliall  alfo  forfeit  500I.  the  one  moiety  of 
the  forfeitures  to  their  majefties,  and  the  other  moiety  to  the  informer. 

6.  By  Stat.  8  &9  Will.  3.  c.  36.  f.  1. — Every  perfon  who  fhall,  by  way  of 
infurance  or  otherwife,  undertake  to  deliver,  or  in  purfuance  of  any  under- 
taking fliall  deliver  or  caufe  to  be  delivered,  any  foreign  alamodes  or  luftrings, 
without  paying  the  duties,  and  every  perfon  who  fliall  agree  to  pay  any 
money  or  reward  for  infuring  or  conveying  any  fuch  goods,  may  be  profe- 
cuted  in  any  aftion  or  information,  and  thereupon  a  capias  in  the  firft  procefs, 
fpecifying  the  fum  of  the  penalties  fued  for,  fliall  iflue,  and  fuch  perfon  fliall 
be  obliged  to  give  bail  by  fubjefts  to  the  officer  executing  the  procefs,  and 

in  court. S.  2.  It  fliall  be  lawful  for  any  perfon  to  fue  for  the  penalty  of 

500I.  in  flat.  4  &5  Will.  &  Mary.  c.  15.  in  any  of  his  majefty's  courts  of  record 
at  Wefl.minfter. 

7.  Although  the  infured  himfelf  fliould  be  ignorant  that  the  goods  were 
prohibited  or  contraband,  the  infurance  would  be  void. — 2  Valin's  Conmi.  128. 

8.  Other  prohibitions  by  ftatutes  and  otherwife,  may  be  feen  under  the 
heads  referred  to  below. 

9.  See   Prelim.  Difc.  40,  79,  83.    Colony,    Contraband,   Enemy,   Goods, 
Illegality,  Ireland,  Mi/lake,  Navigation  A^,  Prize,  Property,  War,  Wool. 

5  N  PROOF. 


t    43"    3 


PROOF. 

i.  T  T  is  not  eafy  to  defcribe  the  number  and  nature  of  the  proofs,  or 
•JL  documents,  which  are  needful  to  recover  a  lofs  or  average ;  becaufe 
they  often  depend  upon  the  particular  circumllances  of  the  cafe  :  however, 
thofe  which  may  commonly  be  required  by  the  infurers  are  as  follow,  viz. 
—  1.  the  protcjt  of  the  mafter,  and  in  extraordinary  cafes,  of  the  mate  and 
fome  of  the  crew : — 2.  a  declaration  whether  any,  and  what  fum  is  infured 
on  other  policies,  or  in  other  places^  upon  the  (hip,  or  goods,  &c.  for 
which  the  lofs  or  damage  is  demanded : — 3.  the  bill  of  fale,  of  the  cojl, 
and  an  account  of  the  outfit ;  and  often  the  cuflom-houfe  regijler,  to  find  out 
the  owners,  when  infurances  are  made  on  the  body,  &c.  of  a  fhip : — 4.  the 
bills  of  lading  figned  by  the  mailer,  fpecifying  the  goods  received  on  board, 
and  for  whom,  &c. ;  or  if  for  the  mailer's  account,  figned  by  the  mate  or 
fupercargo  :  but,  if  there  is  any  apparent  reafon  to  diflrufl  their  being 
genuine,  all  fuch  clearances,  or  regiflers  from  the  cullom-houfes,  as  are 
ordinarily  given  where  the  fhip  has  been  difpatched ;  or  the  manifejl  or 
captain's  report,  where  ihe  arrives,  maybe  called  for ;  and  upon  proofs  of  fuch 
authority,  a  greater  dependance  in  general  may  be  made,  than  upon  mere 
bills  of  lading ;  more  efpecially  upon  certificates  from  thofe  regiflers  which 
the  Spanifli  fhips  in  their  Wefi-India  trade  carry  with  them,  and  of  which 
duplicates  remain  behind  in  the  cuflom-houfe :  for  the  manner  of  making 
fuch  a  regi/ler  is,  that  every  perfon  who  has  goods  to  fhip,  previous  to  their 
embarkation,  gives  an  account  of  their  bales  and  marks,  and  pays  a  duty  for 
them,  either  by  weight  or  meafure,  which  is  explained  in  a  cocket ;  and 
w-hen  they  pafs  the  gates,  or  go  to  be  fhipped,  they  are  fearched  to  fee 
whether  they  correfpond  with  the  entry  delivered  in ;  and  if  they  do,  each 
parcel  is  marked  with  a  cuflom-houfe  flamp,  and  the  cocket  figned  by  the 
fearchers  :  when  on  board,  another  fet  of  vifitors  re-examine  them,  and 
put  their  cumplido  upon  each  cocket,  out  of  all  which  the  general  regifler  is 
framed,  to  go  by  the  fhip,  in  order  to  re-examination  by  the  king's  officers 
at  the  places  of  their  unloading  in  America : — 5.  the  order  for  making  the 
mfurance  : — 6.  the  invoice  of  the  goods : — 7.  letteis  whofe  contents  relate 
to  the  efFe£ls  or  the  infurance  : — 8.  in  cafe  of  capture,  and  condemnation, 
an  authentic  copy  thereof: — g.  an  affidavit  of  the  infured,  concerning  fuch 

facls  as  may  be  fufpicious  or  doubtful. If  needful,   he  may  be  compelled, 

by  a  bill  in  equity,  to  make  a  full  difclofure,  on  oath. 

2.  Case.^ — In  an  aftion  upon  a  policy  of  infurance,  by  feveral  perfons, 
as  part-owners  of  the  fliip  infured,  it  was  held  that  the  plaintiffs  are  obliged 
10  prove  their  refpe6live  interells  in  the  fliip,  and  that  a  proof  of  interefl  in 
fome  of  the  plaintiffs  is  not  a  fufficient  ground  to  recover  upon,  though  the 
interefl  proved  be  more  in  value  than  the  amount  of  the  infurance  :  and 
a  nonfuit  was  recorded. — But  it  feemed  agreed  in  this  cafe,  that  the  plaintiffs 
are  not  to  be  put  upon  producing  the  refpeftive  bills   of   fale   of  their 

refpeflive 


ROOF. 


4Si 


refpeftive  interefts  in  the  fliip  ;  for  that  fuch  fale  may  be  by  parol ;  but  it 
was  held  they  muft  produce  fome  evidence  of  property,  as  a61s  of  owner- 
Jhip ;  which  the  plaintiff  could  not  make  out :  and  it  was  held  that  tlie 
reputation  of  being  the  owners,  without  fhewing  their  title,  or  proving  afts 
of  owner-diip,  is  not  fufficient. — Did.  Tr.  &  Com.  At  Guildhall,  before  Lee, 
Chief  Juftice. — Curling  v.  Brand. 

3.  Case. — To  prove  a  property  in  the  cargo,  on  an  aftion  upon  a  policy 
of  infurance,  the  plaintiff  produced  a  bill  of  parcels  of  one  Gardiner  at 
Peterfburgh,  with  his  receipt  to  it,  and  proved  his  hand-writing: — the 
defendant  objefted,  that  this  was  no  evidence  againft  the  infurers ;  but  the 
chief  juflice  allowed  it. — Stran.  1127.  Hil.    13  Geo.  2. — Riijfclv.  Boehm. 

4.  When  the  queftion  is,  on  whom  lies  the  onus  probandi  in  cafe  of  a 
misfortune  or  accident  ?  the  anfwer  is,  when  any  circumftance,  or  faft,  to  be 
affirmed,  or  denied,  is  the  foundation  of  the  plaintiff's  proceedings,  then  it 
is  incumbent  on  him  to  bring  full  proof; — and,  therefore  the  praftice  is, 
when  an  aftion  is  brought  by  the  infured  againfl  the  infurer  to  recover  the 
value  of  the  fliip  or  goods  loft,  for  the  onus  probandi  to  lie  on  the  infured, 
when  a  misfortune  has  happened : — the  fame  is  done  when  the  infurers,  after 
payment  of  the  value  to  the  owner  of  the  goods  in  confequence  of  a  fuit, 
infift  that  the  misfortune  had  not  happened,  and  on  the  infured's  being 
obligated  to  refund  ;  in  which  cafe  the  proofs  adduced  in  the  former  fuit  are 
not  held  fufhcient,  or  authentic,  in  the  fubfequent  fuit;  and  the  party 
infured  is  obligated  to  prove  the  misfortune  to  have  aftually  happened. — 
Roccus,    215,  not.  58. 

5.  Although  aclaufe  is  contained  in  the  policy,  that  in  cafe  of  lofs  the 
affured  is  to  produce  nothing  more  than  the  policy  only,  neverthelefs  he  fliall 
be  obliged  to  prove  not  only  the  lofs  of  the  fhip,  but  likewife  that  he  had 
aflually  an  intercfi.  on  board,  by  the  bill  of  lading ;  or,  if  the  fame  is  not  at 
hand,  or  cannot  be  conveniently  come  at,  by  fome  other  legal  evidence ; 
unlefs  it  be  exprefsly  ftipulated  in  the  policy,  that  not  even  the  bill  of  lading 
was  to  be  produced,  in  which  cafe  however  all  other  proofs  and  documents, 
that  are  to  be  had,  mufl  be  exhibited. — Ordin.  of  Hamb. 

6.  The  proofs  of  the  (hipping  and  lofs  of  the  effefts  infured  fhall, 
immediately  on  the  notification  of  the  ceffion  or  abandon,  be  communicated 
to  the  infurers ;   who,  before  fuch  notification,  fhall  not  be  liable  to  be  fued 

for  the  payment. If  goods   are  infured  for  the  7)iaflers  account,  he  fliall 

prove  the  purcliafing  of  them,  and  produce  a  bill  of  lading  figned  by  the 
purfer  or  mate. — Ordin.  of  France. 

y.  Remarks. — It  is  become  too  common  a  pra6lice  to  apply  to  infurers 
to  fettle  loffes,  averages,  returns  of  premiums,  &c.  on  policies,  without 
producing  any  fatisfaftory  papers,  documents,  or  proofs ;  but  as  this  is  at 

lead 


432  P        R        O        T        E        S        T. 

lead  a  very  idle,  and  has  often  been  found  a  very  fallacious  method ;    and 
as  experience  has  demonftrated,  on  proper  enquiry  being  made,  that  it  is 
even  an  encouragement  to  deception   and  fraud  ;    and  that  there  are  many 
perfons,    pretending  to  be  very  tenacious  of  their  honour,    who  are    much 
more  fo  of  their  intereji ;  regular  proofs  fhould  always  be  required  to  afcertain 
the  truth  znAfairnefs  of  the  demand;    efpecially  by  the  underwriter  who  is 
firfl  applied  to,  to  make  the  adjuflment :    and  if  he   is  not  confcious  of  his 
experience  and   ability  in  fuch  matters,  he  ought  to  refer  it  to  others  who 
may  be   more   capable   and  expert  in  them  than  himfelf,  and  not  be  induced 
or  prevailed  upon,  inadvertently  or  ignorantly,  to  furnilh  opportunities  to 
unfair  brokers  or  infureds  to  ohx.?an fraudulent,  or  very  erroneous  adjuftments ; 
to  cavil    with    other  underwriters   on  the  fame   policy,  for   not  implicitly 
following  his  indolent  example  (which  is  too  often  the  cafe)  ;    and  to  eftablifli 
precedents    in    praftice,  founded  neither   on  reafon,  juftice,  knowledge,  or 
common  fenfe ;    and  therefore   ought   to   be  reprobated  by  every  judicious 
infurer, — And   thofe    infureds,   or  brokers,  who    do   not  readily,    and  as  of 
courfe,  produce  fuch  fatisfaftory  papers  or  documents,  and  efpecially  if  they 
rcfufe,  cavil  or  pretend  to  be  offended  on  being  requefted  thereto,  may  very 
fairly  be  fufpefted  oS.  finijicr  intentions. 

8.  See  Prelim.  Difc.  ii,  12,  23,  28,  32,  37,  ^feq.  Adjicflment,  Alteration 
of  Policy  Voyage  or  Ri/quc,  Broker,  Claim,  Concealment,  Condemnation,  Court- 
Merchant,  Date,  Document,  Double- Infurance,  Evidence,  Fire,  Fraud,  Intereji, 
Laxo  of  Nations,  Lives,  Majler,  Order,  Payment,  Prior -Infurance,  Property  ^ 
Protejl,  Ship  or  Ships,  Time,  War,  Warranty,  Witnefs. 

PROPERTY     AND     PROPRIETOR. 

1.  A  POLICY  of  infurance  which  may  have  been  caufed  to  be  made  by  a 
-^^^  perfon  having  no  interefl,  or  no  orders  from  a  perfon  having  intereft, 
although  a  blank  be  left  for  the  name  of  the  infured,  cannot  be  afterwards 
ceded  to  a  perfon  who  may  have  intereft :  "  in  aflecuratione  fpeftari  certas 
merces,  &  quidem  merces  ejus,  in  cujus  gratiam  faClaeftaflecuratio ;  &  hanc, 
infciis  &  invitis  aftecurationibus,  non  poffe  transferri  ad  alias  merces,  de 
quibus  ab  initio  cogitatum  non  eft." — Bynkerfhoek  Quoefi.  fur.  Priv.  lib.  4.  c.  12. 

2.  See  Prelim.  Difc.  80.  Abandonment,  Blank,  Capture,  Condemnation, 
Document,  End  of  Voyage  or  Rifjuc,  Enemy,  FaB;or,  Fire,  Illegality,  Intereft, 
Law  of  Nations,  Mqfqucd  Ship  or  Property,  Mi/lake,  Name,  Neutral  Ship  or 
Property,  Order,  Pajport,  Piracy  &  Pirate,  Prize,  Prohibited  Goods,  Proof, 
Ranfom,  Recapture,  Rcfpondcntia,  Transfer,  War. 

PROTEST. 

1.  TJROTEST  is  a  declaration  upon  oath,  ufually  made  by  the  roafter, 

-*-     and  fome  of  his  people,  before   a  juftice,  notary,  or  conful,  at  any 

place  where  they  firft  arrive  ;  fetting  forth  the  courfe  of  the  voyage,  whatever 

bad 


PROVISIONS.  433 

bad  weatlier  they  met  with  in  it,  or  any  other  accident  that  befel  them  :  as 
alfo  what  precautions  they  took  to  guard  againfl  the  ill  confequenccs  to  be 
apprehended  from  thofe  accidents,  with  the  motives  they  had  for  going  into 
any  other  harbour  than  that  they  were  bound  to :  which  fort  of  protefls  are 
now  become  almoft  a  mere  matter  oi  form,  reciting  any  foul  weather,  and 
every  trifling  lea  they  fliip  ;  as  a  notion  is  propagated  at  fome  places,  that  if 
the  mailers  negleft  protefting,  immediately  after  arrival,  againll  the  damages 
that  may  have  refultcd,  they  make  themfelves  anfwerable  for  fuch  as  fl:iall  be 
found  in  any  of  the  goods  aboard ;  from  which  many  mailers  believe  a  protell 
frees  them  :  but  this  is  infufficient  to  clear  them  on  feveral  occafions,  fuch  as 
bad  jiowage,  defeft  in  calking  the  decks,  &c. ;  for  on  any  appearance  of  fuch 
neglefts,  the  proprietors  of  the  goods  have  a  right,  notwithftanding  the 
proteii,  to  infill  that  the  Ihip  be  vilited,  and  a  particular  examination  of  the 
crew  taken,  how,  and  where  thofe  goods  were  laid. 

2.  At  Hamburgh  it  is  the  cuflom,  foon  after  a  fhip's  arrival,  though  not 
jufl  within  twenty-four  hours,  to  fend  a  printed  notice  to  every  perfon  who 
has  goods  on  board,  importing  that  the  mailer  fears  his  cargo  mufl  have 
fuffered  damage :  the  intent  of  this  is,  that  all  who  have  goods  to  receive, 
may  fend  to  iiifpe^l  the  Jhip,  and  the  places  where  they  were  Jlowed,  before 
they  take  them  alhore. — This  is  certainly  a  very  prudent  precaution,  and 
greatly  tending  to  the  mailer  s  jullification  : — at  London,  mailers  feldom  do 
any  thing  more,  than  to  have  their  intentions  of  making  a  protell  noted 
(which  they  call  entering  their  protell)  before  a  notary  public,  without  giving 
any  information  to  the  perfons  who  are  to  receive  the  goods. 

3.  It  is  the  eftabliflied  ufage  and  culloin,  that  unlefs  the  protell  points 
out  how,  and  in  what  particulars,  the  fhip  has  fuffered,  the  owners  are  not 
entitled  to  recover  ;  but  it  is  too  common  for  captains  to  reprefent  gales  of 
wind  in  a  very  terrible  manner,  to  throw  unjuflly  all  the  burden  diey  polfibly 
can  on  the  underwriters. 

4.  The  mailer  fhall  not  be  allowed,  after  delivery  of  the  goods,  to  allege 
any  other  accidents  than  thofe  mentioned  in  his  protell. — Ordin.  of  France. 

5.  His  protell  ought  to  be  decilive  againll  him,  fo  as  he  fliould  not  be 
admitted  to  allege  any  thing  contrary  thereto  :  but,  in  the  way  that  mailers 
ufually  have  their  protells  exprelfed,  it  is  not  eafy  to  make  ufe  of  it  againll 
them. — '2  Valins  Comm.  322. 

6.  See  Accident,  Anchor,  Average,  Commodiiy,  Damage,  Deck,  Document, 
Lifufficiency,  Majler,  Negligence,  Notice,  Proof,  Stowage. 


I 


PROVISIONS. 

T  is  admitted  in  England,  as  well  as  in  France  and  fome  other  countries, 
to  include  the  provifions  in  the  value  of  a  fliip,  as  a  part  of  her  outfit. 

^  O  2.     Provisions 


131 


O     U    A    R    A    N    T    I    N    E. 


2.  Provisions  appointed  for  the  ufe  of  the  fliip,  likewife  it's  military 
Rores,  as  arms,  powder,  ball,  and  the  like,  may  be  infured,  according  to  their 
full  worth,  along  with  the  Ihip,  but  not  alone  and  feparately ;  and  in  cafe  of 
a  I'ubfcqucnt  lols  of  the  (hip,  the  infurer  is  bound  to  pay  for  the  whole 
quantity,  although  all,  or  part  of  the  provilions  iufured,  may  have  been 
expended. — Ordin.  of  Koningjb. — Ordin.  of  Anifl. 

3.  Nothing  that  ferves  for  the  confumpiion  on  the  voyage  may  be 
infured. — Ordin.  of  Rott. — Ordin.  of  Middleb. 

4.  Remark. — According  as  fhips  advance  in  their  voyages,  and  freights 
become  due,  provifions  are  confumed :  therefore,  if  a  fhip  is  loft,  and  it's 
cargo  faved,  the  infurers  upon  her  ought  to  enjoy  a  part  of  what  freights  are 
allowed  in  fuch  cafe,  if,  in  her  value,  be  included  the  provifions,  and  no 
deduction  be  made  for  their  confumption,  and  for  wear  and  tear,  whilft  fhe 
has  been  out. 

5.  See  Average,  Commodity,  Contribution,  Detention,  Embargo,  Freight, 
General  Average,  Interefl,  Ireland,  Outfit,  Perifiiable  Commodities,  Repair, 
Rcfiraint,  Ship,  Wages,  War,  Wear  and  Tear. 


Q- 


QUARANTINE- 

1.  TF  a  fhip,  by  reafon  of  any  evil  infe6lious  diftemper,  is  obliged  to  perform 
JL  any  ordinary  quarantine,  the  charges  occurring  from  thence  fhall  be 
borne  by  the  owners,  and  not  by  the  infurers. Charges  incurred  by  extra- 
ordinary quarantine  belong  to  general-average. — Ordin.  of  Hamb. 

2.    See  General-Average,  Mooring,  Petty-Average, 


RANSOM. 


R. 


RANSOM. 

1.  K  ■  '^  HE  mailer  of  a  fhip,  or  any  other,  who  ranfoms  the  cargo  from  a 
I  privateer,  is  emitled  to  claim  from  the  owners  of  the  cargo  the 
fum  laid  out  upon  their  account ;  they  profit  by  the  tranfaClion, 
and  they  ought  to  indemnify  him  : — but,  what  if  the  cargo  be  afterward  loft 
in  a  ftorm  at  fea,  or  by  robbery  at  land  ?  the  owners  are  not  now  profilers  by 
the  ranfom,  and  therefore  they  cannot  be  made  liable  upon  the  maxim,  guod 
nemo  debet  locupletari  aliena  jaElura:  they  are,  however,  liable  upon  the 
principle  here  explained :  the  moment  the  tranfaftion  was  finifhed,  they 
became  debtors  to  the  ranfomer  for  the  fum  he  laid  out  profitably  upon  their 
account:  he  did  not  undertake  the  rifque  of  the  cargo  ranfomcd ;  and,  there- 
fore the  cafual  lofs  of  the  cargo  cannot  have  the  effect  to  deprive  him  of  his 
claim. — Ld.  Kawis'  Prin.  of  Egu. 

2.  Case. — Holt,  chief  juftice,  faid  (after  other  things)  that  it  feemed  very 
juft  and  reafonable  in  this  cafe,  that  the  owners  of  the  goods  ought  to  pay 
the  redemption  :  \^  a.  pirate  fhould  take  the  (hip  and  goods,  and  the  mafl:cr 
redeem  them,  the  owners  fhall  make  him  fatisfaftion  ;  and  then  much  more 
in  this  cafe,  w^hen  taken  by  an  enemy : — when  the  mafter  makes  a  compqfiiion 
for  the  benefit  of  the  owners,  it  is  highly  reafonable  that  he  fliould  be  indem- 
nified :  the  whole  fiiip  and  goods  would  have  been  prize,  if  he  had  not  made 
this  compofition ;  therefore,  where  there  is  an  inftant  danger  of  lofing  fhip 
and  goods  (as  in  this  cafe,  when  they  were  under  the  capture  and  power  of 
the  enemy)  and  no  hopes  of  faving  them  then  appears  (though  afterwards  it 
may  happen  that  the  (hip  may  be  refcued  on  frefli  purfuit)  cannot  the  mafter 
make  fuch  an  agreement  as  this,  as  well  as  he  may  throw  part  of  the  goods 
overboard,  in  cafe  of  a  tempeft,  to  fave  the  reft? — The  mafter  has  the  cuftody 
and  care  of  the  fliip  and  goods:  fuppofing  then  that  the  mafter  has  fuch  a 
power  of  compounding,  the  goods  remain  to  him  as  a  fecurity,  and  he 
mav  detain  them  'till  payment,  as  he  may  for  freight ;  but  then  it  is  to  be 
confidered,  whether,  when  he  has  once  delivered  them  to  the  owner,  or  to 
his  ufe.  he  has  not  parted  with  his  fecurity,  and  has  no  way  to  come  at  thciu 

again, 


436  RANSOM. 

again,  as  it  is  In  cafe  of  freight. — Thefe  things  are  confiderable,  if  we  go  into 
the  merits  of  the  caufe,  but  that  not  being  before  us,  I  give  no  opinion 
therein. — Raym.  931. — Tranter  v.  Waifon. 

3.  Case. — A  fliip  was  libelled  againft  in  the  admiralty,  for  that  the  mailer 
being  taken  by  a  French  privateer,  had  ranfomed  the  lliip  for  300I.  and  had 
fued  for  the  payment  of  it,  and  was  carried  prifoner  to  Dunkirk,  and  the 
money  was  not  paid,  &c.  and  fcntence  was  given  in  the  admiralty  againfl  tlie 
fliip :  and  the  court  being  moved  for  a  prohibition,  it  was  denied  by  Holt, 
chief  juflice,  who  was  alone  in  court ;  becaufe  the  taking  and  pledge  being 
on  the  high  feas,  the  fhip,  by  the  law  of  the  admiralty,  fliall  anfwer  for  the 
redemption  of  the  mailer  by  his  own  contraft. — 1  Raym.  22.  Mich.  6  W.  &:M. 
— Wil/'on  V.   Bird. 

4.  Case. — A  fhip  was  taken  by  a  French  privateer,  and  the  mailer  of 
her  ranfomed  for  1800I.  (the  mailer  having  a  (hare  in  the  fhip) :  the  mate  was 
carried  into  France  as  an  hojlage  for  this  money. — Lord  Chancellor  faid,  the 
ranfom-money  mud  be  railed  out  of  the  firfl  profits,  notwithflanding  any 
former  mortgage  of  the  fhip  ;  for  if  there  was  a  precedent  mortgage,  what 
would  have  become  of  the  fecurity,  if  the  fhip  had  not  been  redeemed  ?  After 
the  fhip  was  redeemed,  fhe  performed  her  intended  voyage,  and  the  freight- 
money  earned  after  her  redemption  was  the  profits  arifing,  and  out  of  thefe 
the  ranfom-money  is  to  be  fatisfied  :  this  was  upon  motion  ;  the  Lord  Chan- 
cellor faid,  the  infurers  always  paid  part  of  the  ranfom-money. — Molloy,  b.  2. 
c.  6.  f.  13. — 2  Eq.  Abr.  6go. — Ealt.  8  Ann. — Hope  v.  Winter. 

5.  Case. — The  plaintiff  having  underwrote  the  William  and  Anne,  Capt. 
Strachan,  at  and  from  Virginia  or  Maryland  to  London,  had  a  mind  to 
reinfure  himfelf,  and  accordingly  ordered  Mr.  Alexander  Hofkins,  a  broker, 
to  get  it  done ;  who  having  complied  with  the  commifTion,  certified  on  the 
policy,  that  the  intereft  was  in  the  plaintiff:  the  infurance  was  made  interejt 
or  no  intcrejl,  free  from  average,  and  zvithout  benefit  offalvage ;  but  under  the 
policy  was  this  claufe,  in  cafe  of  retain,  the  affitrers  to  have  benefit  of  falvage, 
and  to  pay  average,  the  fame  as  if  wrote  on  intere/l : — the  fl:iip  failed  from 
Virginia  on  her  voyage  to  London,  and  being  about  215  leagues  to  the 
weftward  of  Cape  Clear,  after  a  voyage  of  three  weeks,  fhe  was  taken  by  two 
French  privateers,  and  carried  into  a  place  in  Newfoundland  called  by  that 
nation  Cape  de  Grate,  and  commonly  occupied  by  them  in  the  fifhing 
feafon,  where  flie  continued  in  the  enemy's  polleflion  and  power  forty-nine 
days ;  during  which  time  the  enemy  took  out  of  her  a  great  part  of  her  cargo, 
and,  after  fo  rifling  her,  and  in  their  way  condemning  her,  the  captain  agreed 
to  ranfom  her  with  what  remained  of  her  loading;  and  the  ranfom-bill  being 
figned,  and  his  mate  left  as  an  hoflage,  they  permitted  him  to  purfue  his 
voyage  to  London,  where  he  afterwards  arrived. — Soon  after  the  fliip's 
arrival,  the  merchants  who  were  concerned  in  the  cargo,  and  had  been 
infured,   applied  to  their  underwriters,  for  fatisfatlion,  when  mofl  of  them 

fettled 


RANSOM. 


437 


fettled  the  avierage  for  what  was  pillaged,  at  50  per  cent,  one  at  40,  and  the 
prefent  plaintiff  paid  his  quota  therein,  and  afterwards  applied  to  the  defend- 
ant, who  had  reinfured  him,  to  fetde  his  policy  ;  and  it  was  agreed  between 
them,  that  it  fliould  be  on  the  fame  footing  as  the  major  part  of  the  aforefaid 
underwriters  on  intereft  had  done,  which  the  broker  in  this  infurance  under- 
ftanding  was  done  at  50  per  cent,  he  indorfed  on  the  back  of  the  policy  thefe 
words,  "  adjufted  this  lofs  at  50I.  per  cent,  to  pay  in  one  month,  London, 

12th  of  December  1745,  and  figned  by  the  defendant, — Daniel  Flexney" 

Neverthelefs,  at  the  time  the  defendant  figned  the  above-mentioned  note,  he 
told  the  plaintiff,  that  fome  of  the  underwriters  on  the  original  policies  had 
paid  an  average  only  of  40  per  cent,  and  therefore  he  would  pay  no  more, 
and  at  the  fame  time  with  his  pen  drew  a  line  through  the  word  ffty,  and 
above  it  •wrote  Joj'ty  ;  which  occafioned  fome  difpute  between  them,  but  the 
indorfement  fo  figned  by  the  defendant  remained  uncancelled. — The  defendant 
afterwards  refufed  making  any  fatisfaftion,  under  a  fuppofition  of  his  having 
no  obligation  thereto ;  for  which  his  principal  reafons  were,  viz.  ill.  That 
although  he  had  figned  fuch  an  adjuflment  at  40  per  cent,  yet  he  is  not 
bound  by  it,  becaufe  the  plaintiff  objected  to  it  at  the  time  of  figning,  and 
infifted  on  fifty  : — 2dly,  that  although  the  fhip  was  in  the  enemy's  poffeflion, 
and  carried  into  Cape  de  Grate,  yet  as  (lie  afterwards  proceeded  on  the  fame 
voyage,  and  arrived  fafe  in  London,  therefore  there  could  be  no  lofs,  fo  as 
to  recover  under  a  policy,  intereft  or  no  intereft. — To  the  firfl  of  which 
obje6lions,  the  plaintiff  admits  that  he  did  find  fault  with  the  defendant  for 
flriking  out  the  word  ffty,  and  infertingybr^y  ;  yet  as  the  defendant  did  not 
then  think  proper  to  cancel  the  faid  adjuflment,  but  permitted  it  to  remain 
on  the  back  of  the  policy,  the  plaintiff  apprehended  he  had  a  right  to  recover 
under  the  faid  adjuflment : — as  to  the  defendant's  fecond  objeclion,  the  plaintiff 
fuppofes,  that  as  the  fliip  was  carried  in  by  the  enemy  to  Cape  de  Grate,  and 
detained  till  ranfomed,  that  this  will  amount  to  a  total  divefliture  or  alteration 
of  the  property,  and  be  deemed  fuch  a  lofs  as  will  entitle  him  to  recover : 
this  cafe  feems  to  be  of  a  quite  different  nature  from  a  recapture  before  the 
fhip  is  carried  into  an  enemy's  port. — -Verdift  for  the  plaintiff. — Lex  Merc, 
red.  278.  At  Guildhall  aft.  Eaft.  1746. — Hewit  v.  Flexney. 

6.  Case. — The  plaintiff  having  caufed  himfelf  to  be  infured  50I.  intereft 
or  no  inter cf,  free  of  average,  and  -mthoitt  benefit  offaivage,  on  the  Profperous 
Efther,  Capt.  Miln,  from  and  immediately  following  her  lafl  arrival  at  Mary- 
land or  Virginia,  and  to  continue  till  her  arrival  at  London  ;  and  not  caring 
to  appear  in  it,  he  direfted  his  broker,  Mr.  Hart,  to  get  the  policy  made  in 
his  name,  which  was  accordingly  done ;  and  as  (he  was  deemed  a  miffing 
fliip,  the  premium  was  after  the  rate  of  60  guineas  per  cent. : — the  fhip  failed 
on  her  voyage  from  Virginia,  and  in  forty  days  after  was  taken  by  a  French 
privateer,  about  a  hundred  leagues  to  the  wellward  of  the  Land's-End,  and 
was  detained  by  the  enemy  fix  days  at  fea,  and  then  both  ffiip  and  cargo 
ranfomed  for  3,500!.  but  Capt.  Miln,  inftead  of  coining  dircftly  to  London, 
whereto  he  was  bound,  on  pretence  of  bad  weather,  put  into  llfracomb  in 

5  P  Devonfliirc, 


438  R        A        N        S        O        M. 

Devonfliire,  from  wlience  he  wrote  to  his  owner,  Mr.  Dick,  of  London  ;  but 
the  faid  gentleman's  affairs  being  then  unhappily  fituated,  and  having,  prior  to 
his  misfortunes,  afligned  the   fliip  and  two  policies  of  infurance  thereon,  to 
Mr.  Alexander  Black ;    who  apprehending,  by  what  Capt.  Miln  wrote,  that 
the  fhip  and  cargo  were  much  damaged  fmce  the  capture,  and,  therefore,  that 
the  value  might  fall  fhort  of  a  fufficiency  to  pay  the  ranfom-bill,  and  incident 
charges  ;  he  rather  chofe  to  come  upon  the  inlurers  for  his  money,  than  to 
have  the  trouble  of  taking  the  fliip  and  cargo  under  his  care,  and,  therefore, 
abandoned  the  whole  to  Capt.  Miln,  to  enable  him  to  pay  the  ranfom-bill : 
and  thereupon  Meflrs.  Simonds,  of  London,  merchants,  agents  for  the  captors, 
ordered  Capt.  Miln,  to  carry  the  (hip    and   cargo  to  Briflol,   there  to  be 
difpofed  of,  inftead  of  bringing  her  to  London  ;    which  was  accordingly  done, 
and  after  paying  the  captain  and  failors  their  wages,  amounting  to  upwards 
of  300I.  the  net  proceeds  fell   fiiort  of  the  ranfom-bill,  owing  to  the  damage 
Ihe  received  in  her  voyage  after  the  capture. — The  defendant  fuppofes  this 
was  a  gaming  policy,  though  the  plaintiff"  infifts  upon  it's  being  a  reinfurance  ; 
and  having  applied  to  the   defendant  after  underwriting,  for  his  confent  to 
have  it  declared  fo,  he  abfolutely  refufed  to  admit  it : — the  plaintiff"  feemed  to 
lay  a  good  deal  of  ftrefs  on  a  fuppofed  indifcretion  in  the  captain,  by  paying 
more  for  the  fliip  and  cargo  than  they  were  worth ;  but  had  they  efcaped  the 
damages  fubfequent  to  the  ranfom,  they  would  undoubtedly  have  fold  for 
more  than  they  coft  freeing,  and  never  have  been  abandoned  by  the  owners  : 
the  plaintiff   likewife  infifts,    that  the  fliip  failed  from  Virginia,   but  never 
arrived  at  London,  according  to  the  terms  of  the  policy,  and  therefore  the 
infurance  was  due  : — but  the  defendant  pretends,  that  the  fl^ip's  putting  into 
llfracomb  was  a  deviation,  and  confequently  not  wnthin  the  rifque  of  the 
policy  ;  and  befides,  he  thinks  this  is  not  to  be  confidered  as   a  total  lofs,   in 
the  cafe  of  "  intereft  and  no  intereft,"  as  it  is  a  mere  zoager,  whether  the  fliip 
arrives  or  not ;    the  fliip  did  arrive  in  England,  and  is  now  in  being,  and  this 
was  a  ranfom  at  fea,  only  for  the  benefit  of  the  concerned,  but  the  defendant 
could  reap  no  advantage  by  it,  whether  it  was  prudently  done  or  not ;    and  it 
might  occafionally  have  been  more  for  his  intereft,  if  the  fliip  had  continued 
at  fea  in  the  enemy's  poffeffion,  as  there  was  a  chance  of  her  being  retaken 
before  flie  had  been  carried  infra  prcefidia ;    and  if  flie  had,  and  arrived  fafe, 
there  would  have  been  no  lofs  within  the  terms  of  the  policy ;  as  he  prefumes 
there  is  no  room  to  claim  a  lofs  in  cafes  of  recapture  :    feveral  merchants, 
infurers,  and  brokers,   being  of  opinion  that  on  a  policy  "  intereft  or  no 
intereft,"  a  capture  at  fea  is  never  confidered  as  a  total  lofs,  unlefs  the  prize 
is  afterwards  carried  into  the  enemy's  port,  and  that  the  abandoning  the  fliip 
and  cargo  by  the  owners,  after  her  arrival,  will  not  alter  the  cafe. — The  jury 
found  a  verdift  for  the  plaintiff. — Lex  Merc.  red.  2jg.  Trin.   1747.  at  Guild- 
Iiall. — Barclay  v.  Etherington. 

7.  Case. — The  plaintiffs  having  received  orders  from  Mr.  John  Jones,  of 
Bofton,  in  New-England,  to  make  foine  infurance  for  him  on  the  ReprifaJ, 
Capt.  Gowan,  and  alfo  on  her  goods  and  freight,  at  and  from  Cape  Fear,  in 

North-Carolina, 


HANSOM. 


439 


North-Carolina,  to  Briflol ;    underneath  the  policy  for  the  (liip  only,   were 
inferted  the  fubfequent  words  or  declaration,  viz.  "  the  following  infurance  is 
on  the JIu'p  only,  valued  at  the  fum  infured  ;"    on  which  part  the  defendant 
underwrote    lool. — The  fhip  failed  from   Cape  Fear,  -with  a  cargo  of  pitch, 
tar,  &c.  in  profecution  of  her  voyage  for  Briflol,  and  had  got  within  an 
hundred  and  fifty  leagues  to  the  wellward  of  Cape  Clear,  in  Ireland,  when  flie 
was  attacked  and  taken  by  three  French   fliips,  bound  for  Newfoundland, 
where  they  carried  her  and  her  cargo  to  a  French  port  called  Carpoon,  after 
having  firli:  taken  out  all  the  men,  and  difperfed  them  aboard  their  own  Ihips : 
— on  their  arrival  at  the  aforefaid  port,  the  captors  took  out  all  her  pitch 
(being  two  hundred  and  three  barrels)  feme  tar,  what  rice  was  aboard,  &c. 
and  after  detaining  her  about  three  or  four  weeks  in  the  faid  port,  the  captors 
offered  Capt.  Gowan  his  fhip  and  remaining  cargo  for  9,500  livres  (about 
425I.  flerling)  which  he  accepted,  and  became  the  purchafer  thereof  on  thofe 
terms,  leaving  his  fon  as  an  hojlage  for  the  payment  of  the  ranfom. — The 
fhip  departed  from  Carpoon  for  Briflol,  and  on  her  voyage  met  with  very 
bad  weather,  which  broke  her  rudder,  and  was  forced  to  put  into  Appledore 
in  Devonfhire  (the  lirfl  port  they  could  make  with  fafety)  where  the  captain, 
fiirfl  and  fecond  mates,  boatfwain,  and  a  fore-mafl  man,  made  a  protefl  on 
their  oaths,  giving  fuch  an  account  as  the  preceding. — The  captain  having 
purchafed  the  fliip  and  cargo,  as  before  mentioned,  on  his  arrival  at  Appledore, 
applied  to  Mr.  Perkins  of  Briflol,  to  whom  he  was  configned  by  Jones  the 
owner,  who  refufed  to  pay  the  ranfom-money,  or  have  any  thing  to  do  with 
the  fhip  or  cargo,  and  then  the  captain  came  to  London  to  the  infurers ;  and 
thofe  who  infured  on  the  goods,  impowered  him  to  fell  the  cargo  for  what  he 
could,  in  order  that  if  it  produced  more  than  the  ranfom,  they  might  have  the 
benefit ;    but  the   infurers   on  the  Jliip  would  not  intermeddle,  or  give  any 
direftions  about  it. — The  captain  returned  to  the  fhip,  and  fold  that  and  the 
cargo  jointly  for  above  lOol,  lefs  than  the  redemption-money,  after  deduftinp- 
charges,  and  he  has  been  obliged  to  pay,  or  give  fecurity  for  the  remainder, 
to  procure  his  fon's  liberty. — The  fhip  being  thus  taken  and  carried  into  an 
enemy's  port,  where  fhe  was  detained  a  confiderable  time,  and  had  great  part 
of  her  cargo  taken  out  by  the  captors,  and  afterwards   meeting  with  other 
misfortunes  which  occafioned  her  producing  Icfs  than  the  ranfom-money,  and 
confequently  to  prove  a  total  lofs,  to  be   made  good  by  the  infurer;   the 
plaintiffs  demand  a  total  lofs,  as  the  policy  was  valued:  but  the  defendant  on 
the  contrary  pretends,  that  as  part  both  of  the  fhip  and  goods  were  faved,  he 
is  entitled  to  an  average,  and  not  fubjeft  to  an  entire  lofs  : — but  the  jury  found 
a  verdi61;  for  the   plaintiff. — Lex  Merc.  red.  283.   at  Guildhall,  Hil.  1745. — 
Lane  &  Ca/zvall  v.  Collyer. 

8.  By  Stat.  17  Geo.  3.  c.  7.  f  10. — If  the  commander  of  any  com- 
miffioned  fhip  fliall  agree  with  any  perfon  for  the  ranfom  of  any  fhip,  &c. 
belonging  to  the  rebellious  colonies,  he  fhall  be  deemed  a  pirate,  and  fuffer 
accordinglv. 

o.     Ik 


410  RANSOM. 

g.  In  infurance  on  the  bodies  of  maflers,  mariners,  and  paffcngers,  againfl 
infidels,  and  other  pirates,  the  underwriters  (liall  be  obHgcd  to  pay  the  fum 
they  have  underwritten,  as  foon  as  the  bills  of  exchange  drawn  for  the  pay- 
ment of  the  ranfom,  are  accepted;  or  fooner,  if  it  appears  tliat  the  ranfomed 
is  arrived  on  chriflian  ground  :  but  with  this  provifo,  that  the  fum  infured  for 
the  ranfom  be  laid  out,  and,  in  cafe  the  perfon  was  ranfomed  for  lefs,  that  the 

overplus  be  returned. He  who  caufes  himfelf  to  be  infured  on  fhip  and 

lading,  with  intention,  if  taken  by  the  enemy,  to  caufe  the  fame  to  be 
ranfomed  or  redeemed,  fliall  be  obliged  to  exprejs  it  diftinftly  in  the  policy^ 
mentioning  at  what  fum  order  is  given  to  the  mafler,  or  him  who  hath  the 
dire6lion  thereof,  for  the  redeeming ;  in  which  cafe  the  underwriters  mud 
continue  to  run  the  rifque  on  fuch  ranfomed  fliips  and  goods,  till  they  arrive 
at  the  deftined  place  of  unlading ;  and  moreover  be  obliged  to  make  good 
the  fum  with  the  charges  which  are  paid  for  the  perfon  who  is  gone  over  as 
hojlage  for  the  ranfom,  in  the  manner  of  a  grofs  average  on  fliip  and  cargo ; 
this  ferving  as  a  foundation  or  rule,  that  when  the  fliip  is  taken  and  ranfomed 
before  fhe  has  accomplifhed  half  her  voyage,  the  goods  (hall  be  reckoned 
according  to  the  real  coft,  all  charges  'till  on  board,  and  the  premium  of 
infurance,  included :  and  being  advanced  beyond  half  the  voyage,  then  at 
what  they  would  fell  for :  and  the  Ihip  fhall  at  all  times,  be  fhe  ranfomed 
before  fhe  has  made  half  the  voyage,  or  after,  be  reckoned  according  to  the 
valuation  made  in  the  policy.- — Ordin.  of  Amjl, 

ID.  Things  taken  forcibly,  or  Jlolen  out  of  the  fhip,  by  enemies  or 
pirates,  fhall  not  come  into  average ;  but  the  mafter,  according  to  cullom, 
giving  them  fome  goods,  or  paying  a  ranfom  for  redeeming  fhip  and  goods, 
this  fhall  abfolutely  belong  to  grofs  average,  and  be  made  good  by  a  contri- 
bution of  all  the  parties  concerned. Thefe  being  likewife  obliged  to  redeem 

the  mafler,  and  indemnify  him  on  account  of  detention,  expences,  and  other 
charges,  when,  for  freeing  the  fhip,  he  has  bound  himfelf  to  pay  a  certain 
ranfom,  and  to  that  end  becomes  fecurity  in  his  own  perfon,  or  procures 
others,  and  has,  with  all  polfible  expedition,  given  due  notice  of  it  to  the 
parties  concerned :  yet  miijt  the  majier  he  very  careful  that  the  ranfom  and 
other  charges  do  not  exceed  the  value  of  the  flip  and  goods,  as  the  owner  and 
freighter  may,  in  fuch  cafe,  by  a  transfer  of  their  fhare  in  the  fhip  and  goods, 
difcharge  themfelves  of  any  further  obligation. — Ordin.  of  Koningfb. 

11.  If  a  maRer  finds  an  opportunity  to  clear  and  ranfom  his  fhip  and 
cargo,  thus  taken,  he  has  not  only  a  right  to  do  fo,  but  is  in  duty  bound  and 
obliged  to  it,  if  the  interefl  of  his  owners  and  freighters  is  promoted  thereby  ; 
and  the  afjiirers  are  obliged  to  approve,  without  contradiction,  whatever  the 

mafler  fhall  tranfaft  in  this  manner. If  a  fhip  that  is  ranfomed,  is  lojl  on 

it's  voyage,  or  taken  again,  after  it  was  redeemed,  then  the  adurers  mufl  pay 
not  only  the  lofs  of  the  fhip  and  goods  loll  or  taken  again,   but  the  money 

paid  for  the  ranfom  likewife. When  a  mafler  has  made  his  fhip  free,  and 

ranfomed  it,  he  fhall  immediately  and  by  the  firfl  opportunity  give  an  account 

thereof 


RANSOM. 


441 


thereof  to  the  aflured,  who  (hall  acquaint  his  ajfurers  therewith,  that  they 
may  at  all  events  take  the  necelFary  meafures  in  due  time  to  make  ajfurancc 
upon  the  ranfom,  if  they  think  proper :  but  if  a  mafler,  after  having  ufed  his 
beft  endeavours,  could  not  find  occafion  to  give  fuch  fpeedy  advice  of  what 
had  happened,  and  the  fhip  fhould  in  the  mean  time  happen  to  meet  with 
any  mifchance,  or  be  loft,  then  the  regulation  above  is  to  take  place. — 
Ordin.  of  Hamb. 

12.  If  the  veffel  and  the  goods  be  ranfomed,  the  mafter  fliall  be  paid  his 
freight  as  far  as  he  fliall  have  proceeded  on  his  voyage,  and  even  the  whole 

freight,  if  he  carry  them  to  the  deftined  port ;    he  contributing  therein  his 

fhare   of  the  ranfom. The  goods  at  the  current  price  where   unloaded, 

deducting  charges,  ftiall  contribute  towards  the  ranfom,  as  well  as  the  whole 
value  of  the  fliip  and  freight,  after  deducting  the  victuals  confumed,  and  the 
advance  made  to  the  feamen,  who  in  proportion  to  what  is  due  to  them  for 
their  wages,  fliall  bear  their  part,  as  well  as  the  freight,  which  will  hereby  bear 

lefs. In   cafe  of  capture,  the  infured  may  ranfom   their  effefts,  zoithout 

waiting  for  orders  from  the  in/urers,  if  they  could  not  advife  them  of  it :  they, 
however,  fhall  be  obliged  to  let  them  know  afterwards  in  writing,  what  fum 

was  paid  for  the  ranfom. The   compofition  for  the   ranfom   the   infurers 

may  take  on  themfelves,  in  proportion  to  their  concern  ;  in  which  cafe  they 
fliall  be  obliged  to  declare  immediately  that  they  will  contribute  towards  the 
payment  of  the  ranfom,  and  will  run  the  rifque  of  the  return :  if  not,  they 
fhall  pay  the  fum  by  them  infured,  and  have  no  pretenfion  on  the  cffefts 
ranfomed. — Ordin.  of  France. 

13.  The  reafon  why  the  failors'  wages  contribute  in  cafe  of  ranfom  (by 
the  above  article  of  the  ordinance  of  France)  is,  that  it  preferves  their  liberty, 
and  by  that  means  their  wages  ;  and  it  follows  from  the  fame  principle,  that 
they  ought  to  contribute  for  what  they  have  received  in  advance  : — 1  Valins 

Comm.  664. But  the  reafon  why  their  wages  do  not  contribute  in  cafe  of 

jettifon  is,  becaufe  it  is  precifely  by  their  aid  and  labour  the  goods  have  been 
caft  over-board,  and  the  reft  of  the  cargo  faved. — '2  Valins  Comm.  200. 

14.  If  the  infurer,  without  the  confent  of  the  infured,  ftiould  redeem  the 
fhip  and  cargo,  it  would  not  be  allowable  for  him  to  offer  to  the  infured  the 
reftitution  of  them,  in  order  to  be  exempt  from  paying  the  fum  infured. — 
fo  decided  by  the  fupreme  court  at  Genoa,  decif.  lOi. — The  reafon  is,  that 
from  the  moment  of  the  capture,  the  affured's  right  of  recourfe  againft  the 
infurer  hath  been  clear,  and  he  could  not  be  deprived  of  it  by  the  infurer, 
who,  in  this  cafe,  could  only  ftipulate  for  the  redemption  for  his  particular 
intereft,  without  engaging  the  infured  in  any  manner. — 2  Valins  Comm.   151. 

1.3.  The  cafe  of  recapture  is  applicable  to  that  of  a  ftiip  ranfomed  by  an 
enemy,  who  is  afterwards  taken  with  the  ranfom-bill  and  the  hojlage ;  becaufe 
the  ranfom  reprefents  the  ranfomed  fhip,  by  means  of  which  the  privateer 

5  Q  that 


412 


RECAPTURE. 


that  hath  taken  the  enemy  who  had  ranfomcd  her,  is  entitled  to  the  ranfom  at 
the  fame  time  as  to  the  enemy's  fliip. — 2  Valin's  Comm.  256,  286. 

16.  As  the  captor  muft  maintain  the  hojlagc,  the  charge  thereof  mufl;  be 

reimburfed   when  tlie  ranfom  is  paid. The  hoftage  hath  no  right  to  any 

recompenfe  or  gratuity  from  the  owners,  &c.  but  only  to  a  reimburfemcnt  of 
his  necelfary  expences,  and  an  indemnification  for  the  lofs  of  his  labour  until 
his  return. — Ibid.  286. 

17.  It  hath  been  determined,  in  France,  by  a  decifion  of  the  council  of 
prizes,  4th  of  May  1759,  that  the  capture  of  an  Englifh  vefTel  called  the 
Phccnix,  or  the  Fanny,  of  Poole,  Capt.  Robert  Duncan,  carried  into  Rochelle, 
by  order  of  Capt.  Peter  Gautier,  of  the  Levrier,  of  Bourdeaux  (who  had 
taken  her,  notwithftanding  fhe  had  a  few  days  before  been  taken  and  ranfomed 
by  Capt.  Godineau,  of  the  La  Paix  Couronnee,  of  Rochelle)  was  ill  and  unduly 
made  ;  and  it  was  ordered  that  the  fhip  and  cargo,  or  their  produce,  fhould 
be  delivered  up  to  the  Englifh  proprietor,  without  prejudice  to  the  ranfom  ; 
in  conformity  to  a  regulation  of  the  court  of  France,  of  the  27th  of  January 
1706,  by  which  it  is  forbidden  to  all  captains,  &c.  to  ftop,  under  any  pretext 
whatfoever,  the  (hips  of  enemies  furnilhed  with  ranfom-bills,  under  penalty  of 
all  the  charges,  damages,  and  intereft ;  unlefs  the  ranfomed  veflel  were  found 
out  of  her  courfe,  or  beyond  the  time  granted  her  to  arrive  at  the  place  of 
her  deftination. — 2  Valins  Comm.  288. 

18.  See  Captives,  Claim,  Colony,  Contribution,  Hojlage,  Pirate,  Recapture f 
Seamen,  Voyage,  Wages, 


RECAPTURE. 

I.  TF  a  fliip  in  her  voyage  happens  to  be  taken  by  an  enemy,  and  afterwards 
-*-  is  retaken  by  another  fliip  in  amity,  and  reflitution  is  made,  and  fhe 
proceeds  on  in  her  voyage,  the  contracl  is  not  determined,  though  the  taking 
bv  the  enemy  diverted  the  property  out  of  the  owners  ;  yet  by  the  law  of  war, 
that  pofi'elhon  was  defeafible,  and  being  recovered  in  battle  afterwards,  the 
owners  become  reinvefted ;  fo  the  contraft,  by  fiftion  of  law,  became  as  if 
Ihe  never  had  been  taken,  and  fo  the  QvAixe.  freight  becomes  due. — 7  Rich.  2. 
— Stalkam  Abridg.  54. 

,1 2.  Case. — A  bill  in  chancery  was  brought  for  relief  againft  a  verdift,  and 
jndgment  given  in  the  court  of  common  pleas  upon  a  policy  of  infurance, 
and  to  have  an  injun6lion  to  flay  execution  upon  the  judgment :  the  cafe 
appeared  to  be,  that  the  fliip  infured  was  taken  by  a  Spanifli  privateer ;  and 
that  after  it  had  been  carried  infra  hojlium  prcefidia,  it  was  retaken  by  an 
Englifh  privateer  : — it  was  argued  for  the  now  plaintiff,  who  was  the  defendant 
at  law,  that  although  by  the  law  of  nations  the  firll  capture  of  the  fhip,  and 

it's 


RECAPTURE.  443 

it's  being  infra  hoftium  praefidia,  had  abfolutely  divefted  the  right  of  the 
original  proprietors,  yet  that  now  by  the  ftatute  made  in  the  year  1740,  it  is 
otherwife  ;  being  thereby  provided,  that  if  the  fhips  of  our  Enghfh  merchants 
fhould  be  taken  by  an  enemy,  and  afterwards  retaken  by  any  of  his  majcfty's 
fubje£l;s,  that  the  right  of  the  original  proprietors  in  fuch  fhips  fliould  be 
referved  on  their  paying  one  moiety  of  the  value  of  fuch  fhips  to  the  recaptors 
for  refalvage :  upon  this  it  was  argued,  that  the  verdicl  and  judgment  are 
unjuft,  in  regard  that  the  whole  infurance-money  is  given  in  damages,  when 
it  appears  that  the  plaintiff  at  law,  upon  payment  of  one  half  of  the  vakie  of 
the  fhip,  might  recover  it  back,  and  therefore,  that  one  half  of  the  infurance- 
money  ought  only  to  have  been  given  in  damage  ;  upon  which  the  injundion 

prayed  by  the  bill  was  moved  for. On  the  other  fide,  it  was  infilled  that 

this  was  a  right  verdict,  and  that  the  infured  was  not  to  be  put  to  the  delay, 
expence,  and  trouble  of  afcertaining  the  value  of  the  fliip,  in  order  to  recover 
it  back,  upon  payment  of  one  moiety  of  the  value  to  the  captors  :  that  for 
recovery  thereof,  the  infurers  might  ftand  in  the  place  of  the  infured,  and 
make  ufe  of  their  names,  which  had  been  offered :  that  they  did  not  pretend 
to  oppofe  fo  much  of  the  bill  as  fought  this ;  but  infifted  that  this  could  be 
no  ground  for  granting  the  injunftion  prayed:  that  this  point  had  been 
debated  before  Lord  Chief  Juflice  Willes,  upon  trial  of  the  iffue  at  nifi  prius, 
who  had  declared  his  opinion,  "  that  this  right  o^  falvage  ought  not  to 
preclude  the  infured  from  their  recovery  upon  the  infurance,  till  the  falvage 
Ihould  be  fettled  :  that  the  defendants,  the  infurers,  would  be  entitled  to  fland 
in  the  place  of  the  infured,  to  make  what  advantage  they  could  of  the  falvage." 

Lord  Hardwicke,  chancellor,  being  of  the  fame  opinion,  refufed  to  grant 

the  injunftion  ;  and  faid  that  the  damage,  in  recovering  the  falvage,  is  as 
much  a  part  of  the  infurance  as  the  fhip  itfelf. — Dici.  Tr.  &  Com.  148.  Mich. 
18  Geo.  2. — Prendle  v.  Hartley. 

3.  Case. — The  defendant  infured  the  fliip  Succefs,  from  London  to 
Bermudas,  and  fo  to  Carolina ;  the  fhip  was  taken  by  a  Spanifh  privateer, 
and  afterwards  retaken  by  an  Englifli  privateer,  and  carried  into  Boflon  in 
New-England,  where  no  perfon  appearing  to  give  fecurity,  or  to  anfwer  the 
moiety  the  recaptors  were  entitled  to,  fne  was  condemned,  and  fold  in  the 
court  of  admiralty :  there  the  recaptors  had  their  moiety,  and  the  overplus 
money  remained  in  the  hands  of  the  officers  of  that  court : — an  action  was 
brought  by  the  defendant,  upon  the  policy,  who  had  a  verdicl : — the  plaintiff 
brought  a  bill,  fuggefting  the  capture  to  be  fraudulent,  and  done  dejignedly 
by  the  captain ;  and  moved  now  for  an  injunftion  to  ftay  the  proceedings  at 
law : — the  counfel  for  the  plaintiff  argued,  that  though  the  capture  might  not 
be  fraudulent,  yet  the  defendant  ought  not  to  recover  more  on  the  policy 
than  a  moiety  of  the  lofs,  as  the  aft  of  13  Geo.  1.  c.  4.  f.  18.  gives  the  falvage 
to  the  owner,  and  he  is  entitled  to  receive  it  from  the  officers  of  the  admiralty, 
and  that  the  plaintiff  ought  to  be  obliged  to  pay  no  more  than  the  lofs  he  has 
aftually  fuRained,  which  cannot  be  afcertaincd  till   after  the   defendant  fhall 

have  received  what  inight  have  come  upon  the  falvage. The  defendant, 

in 


444  RECAPTURE. 

in  his  anfwer,  had  fworn  he  had  offered,  and  was  now  willing  to  rehnquifii, 
his  interell  to  them  in  the  bcncht  of  the  falvage,  and  would  give  them  a  letter 

of  attorney  for  that  purpofe   to  receive  it. Lord  Chancellor  Hardwicke 

faid,  there  is  no  ground  for  an  injundion  in  this  cafe  ;  here  there  was  an 
agreement  to  go  to  trial  in  one  of  thefe  a6lions  which  had  been  brought,  and 
to  be  bound  by  the  event  of  that ;  at  the  time  of  the  trial  they  knew  the  ftiip 
was  retaken,  and  the  manner  of  the  capture  :  the  quantum  of  the  damage  and 
lofs  fullained,  is  the  only  thing  now  to  be  difputed ;  for  it  is  impoffible  to 
carry  on  trade  without  infuring,  efpecially  in  the  time  of  war  :  therefore 
regard  mud  be  had  to  the  infured,  as  well  as  the  infurer ;  and  where  there  is 
no  admiffion  in  the  anfwer  of  any  kind  of  fraud,  though  various  pretences  of 
that  fort  may  be  fet  up  by  the  bill,  they  are  not  to  be  regarded :  the  queftion 
then  arifes  on  the  ftatute  of  13  Geo.  2.  with  regard  to  the  falvage  :  it  has  been 
faid,  there  ought  to  be  only  half  the  lofs  recovered  on  the  policy  ;  and  as  to 
that,  the  aft  has  made  great  alteration  in  the  laws  of  nations  with  regard  to 
recaptures  :  the  carrying  a  fhip  infra  prxfidia  hojlium,  or  Ji  perno6laverit 
with  the  enemy,  makes  it  the  prize  of  the  perfon  retaking  it,  as  if  it  had 
been  originally  the  fhip  of  the  enemy ;  but  by  the  atl,  the  recaption  is  the 
revefiing  of  the  property  of  the  owner :  but  where  infurances  are  "  interefl 
or  no  intereft,"  I  am  doubtful  whether  the  aft  can  operate  or  not :  this  is  an 
infurance  according  as  intereft  fliall  appear :  if  there  is  a  falvage,  that  muft 
be  dedufted  out  of  the  money  recovered  by  the  policy ;  but  if  none  has  come 
to  the  hands  of  the  plaintiff  in  the  aftion,  the  jury  cannot  take  notice  of  it: 
the  ffiip  was  condemned  and  fold,  becaufe  the  moiety  was  not  paid,  or  fecured 
to  be  paid  by  the  owners  :  it  is  uncertain  whether  the  defendant  will  receive 
any  thing  or  not ;  and  if  any  thing  is  recovered,  he  muft  have  an  allowance 
for  his  expences  in  recovering :  therefore  I  take  it,  when  he  is  willing  to 
relinquifli  his  intereft  in  the  falvage,  he  ought  to  recover  the  whole  money 
infured  :  it  would  be  mifchievous  if  it  was  otherwife ;  for  then  upon  a  recap- 
ture, a  man  would  be  in  a  worfe  fituation  than  if  the  fliip  was  totally  loft. — 
3  Atkyns  195.  Nov.  15.  1744. — Pringle  v.  Hartley. 

4.  Case. — This  was  a  fpecial  cafe  referved  at  Guildhall,  at  the  fittings 
there  before  Lord  Mansfield,  after  Michaelmas  term  1760,  in  an  aftion 
brought  againft  the  defendant  as  one  of  the  infurers,  upon  a  policy  of  infu- 
rance from  Virginia  or  Maryland  to  London,  of  a  ftiip  called  the  Selby,  and  of 
goods  and  merchandife  therein,  until  (he  (hall  have  moored  at  anchor  twenty- 
four  hours  in  good  fafety  :  the  cafe  ftated  for  the  opinion  of  the  court  was 
as  follows  ; — that  the  fliip  Selby  was  valued  at  i,20ol.  in  the  policy,  which 
was  made  in  the  name  of  John  Mackintofti,  on  behalf  and  for  the  ufe  and 
benefit  of  the  plaintiff,  in  which  was  fubfcribed  by  the  defendant,  the  fum  of 
lool. :  that  the  fhip  was  on  the  28th  of  March  1760,  in  good  fafety  at  Virginia, 
where  ftie  took  on  board  192  hogffieads  of  tobacco,  to  be  delivered  at  London: 
that  on  28th  of  March  ftie  departed  from  Virginia  for  London  ;  and  on  the 
6th  of  May  was  taken  by  a  French  privateer,  called  the  Aurora,  of  Bayonne, 
Capt.  Jean  Piena  Lcftea  ;  that  at  the  time  of  the  capture,  the  Selby  had  nine 

men 


RECAPTURE. 


445 


men  on  board  ;  and  the  captain  of  the  faid  privateer  took  out  fix,  befides  the 
captain,  Darfdill,  leaving  only  the  mate  and  one  man  on  board,  with  a  prize- 
mafter  and  feveral  Frenchmen  to  carry  her  to  France  :  that  on  the  23d  of  May 
file  was  retaken  off  Bayonne,  by  the  Southampton,  an  Enghfh  man  of  war, 
commanded  by  Capt.  Antiobus,  who  fent  her  into  Plymouth,  where  fhe 
arrived  the  6th  of  June  following  :  that  the  plaintiff  living  at  Hull,  as  foon  as 
he  was  informed  what  had  befallen  his  faid  Ihip,  the  Selby,  wrote  a  letter,  on 
the  23d  of  June,  to  his  agent  John  Mackintofli,  living  in  London,  to  acquaint  the 
defendant,  "  that  the  plaintiff  did  from  thenceforth  abandon  to  him  his  interefl 
in  the  faid  fliip,  as  to  the  faid  one  hundred  pounds  by  the  defendant  infured :" 
that  the  faid  John  Mackintoffi,  on  the  26th  day  of  the  faid  June,  acquainted  the 
defendant,  with  an  offer  to  abandon  the  fliip  :  to  which  the  defendant  faid, 
"  he  did  not  think  himfelf  bound  to  take  to  the  fhip  ;  but  was  ready  to  pay 
the  Jalvage,  and  all  other  loffes  and  charges  that  the  plaintiff  fuftained  by  the 
capture  :"  that  on  the  19th  of  Auguft,  the  Selby  was  brought  into  the  port  of 
London,  by  the  order  of  the  owners  of  the  cargo,  and  the  recaptors :  that  fhe 
fuftained  no  damage  from  the  capture  :  that  the  whole  cargo  of  the  faid  fliip 
Selby  was  delivered  to  the  freighters  at  the  port  of  London ;  who  paid  the 
freight  to  Benjamin  Vaughan,  without  prejudice. — The  queftion  therefore 
fubmitted  to  the  opinion  of  the  court  is,  "  whether  the  plaintiff,  on  the  26th 
day  of  June,  had  a  right  to  abandon,  and  hath  a  right  to  recover  as  for  a  total 
lofs?" — If  he  is  entitled  to  recover  for  a  total  lofs,  then  the  jury  find  a  verdift 
for  the  plaintiff,  damages  98I.  cofts  40s. :  but  if  the  court  fliall  be  of  opinion, 
that  he  had  no  right  to  abandon  on  the  26th  day  of  June,  or  he  ought  only  to 
recover  an  average  lofs,  then  the  jury  to  find  a  verdicl  for  the  plaintiff, 
damages  lol.  cofts  403. — figned,  Fletcher  Norton,  for  the  plaintift  : — H.  Gould, 

for  the  defendant. This  cafe  was  firft  argued  on  Friday  the  10th  of  April 

laft,  by  Mr.  Morton  for  the  plaintiff,  and  Mr.  Afton  for  the  defendant. — Mr, 
Morton:  the  queftion  is,  whether  bylaw  the  infurers  are  fubjeft  to  a  total 
lofs,  or  only  to  an  average  lofs  ?  this  is  a  valued  policy ;  and  the  infurer 
having  received  a  fufficient  premium,  the  infured  ought  in  point  of  juftice  and 
equity,  to  have  a  right  of  election  whether  to  keep  or  to  abandon  the  thing 
infured  :  and  when  the  infured  has  once  had  his  eleftion  to  demand  the  money 
infured,  no  fubfequent  event  can  take  it  from  him  :  for,  the  peril  infured 
againft,  having  aftually  happened,  the  condition  of  the  contraft  is  broken,  on 
the  infurer's  part :  and  when  a  condition  is  once  broken,  no  fubfequent  event 
can  hinder  the  other  party  from  infifting  upon  it ;  nor  can  an  abandonment 
be  partial. — Mr.  Afton,  contra,  for  the  defendant:  this  mere  capture  followed 
by  a  recapture  before  it  was  taken  infra  prcejidia  hojiium,  is  not  a  total  lofs, 
nor  can  entitle  the  infurer  to  abandon  :  abandoning  is  a  term  that  imports 
fomething  left  to  be  abandoned  :  which  cannot  be  faid,  if  the  lofs  be  abfo- 
lutely  and  ftriclly  fpeaking  total :  the  right  to  abandon  muft  arife  upon  the 
end  being  fo  far  defeated,  that  it  is  not  worth  the  while  of  the  infured  to 
purfue  fuch  a  lofs  as  is  equally  inconvenient  to  him,  as  if  it  had  been  a  total 
lofs  :  a  bare  taking  at  fca  is  not  enough  to  make  it  a  total  lofs  ;  it  was  never 
in  locofecuro,  but  only  carrying  towards  France  :  all  the  books  that  fpeak  of 

5  R  the 


446  RECAPTURE. 

the  aflured's  right  to  abandon,  are  to  be  undcrftood  of  fubfiftuig  perils :  now 
this  {hip  was  rejlored  undamaged,  and  in  as  good  phght  as  before  ;  and  if  it 
had  not  been  in  quite  fo  good  plight,  yet  it  would  only  be  a  lofs  in  proportion 
to  the  damages :  the  fliip  was  perfeftly  fafe,  and  able  to  purfue  her  voyage, 
at  the  time  of  abandoning ;    fhe  was  completely  redeemed  from  her  peril 

undamaged,  and  came  home  fo  to  her  deftined  port. Note,  it  was  admitted 

on  both  fides,  that  there  was  no  cafe  where  there  had  been  an  adjuflment  of 
a  partial  lofs  upon  a  valued  policy :  nor  any  determination  that  it's  being  a 
valued  policy  turned  it  into  a  wager,  atid  fo  differed  it  from  the  cafe  of  an 

open  policy  (which  is  a  contraft  of  indemnity). This  caufe  came  ort  again 

(in  the  paper)  to  be  argued  a  fecond  time,  on  Tuefday  the  26th  May  1761. 
— Mr.  Norton  argued  on  behalf  of  the  plaintiff:  I  mufl  contend  for  two 
propofitions,  which  flill  remain  to  me,  and  are  thefe  ;  firfl,  there  was  a  time 
once  exiiling  when  the  infured  had  a  right  to  abandon,  and  to  recover  from 
the  infurer  as  for  a  total  lofs ;  fecond,  nothing  has  here  happened,  to  take 
this  right  away  from  them  : — in  the  cafe  of  a  capture,  the  thing  itfelf  is  as  far 
from  being  really  deftroyed  or  annihilated,  as  it  was  when  in  the  hand  of  the 
owner;  but  yet  it  is  totally  loft  to  the  owner  ;  his  dominion  over  it  is  totally 
gone :  there  may  be  an  abandonment  even  upon  an  embargo,  if  the  cargo  be 
■periJJiable :  where  there  was  once  a  total  lofs,  or  lofs  of  fuch  a  kind  as  is  in 
it's  nature  total,  the  infured  have  a  right  to  abandon,  although  there  be  a 
fubfequent  recapture :  for,  when  once  the  infured  had  a  right  to  abandon 
vefted  in  him,  fuch  right  continued  in  him,  and  could  not  be  taken  away  from 
him  :  and  fo  I  underftood  it  to  be  laid  down  in  the  cafe  of  Gofs  v.  Withers : 
it  has  been  likewife  objefted,  "  that  if  the  infured  may  always  be  at  liberty 
to  abandon,  in  cafe  of  a  capture  and  recapture,  it  would  oblige  all  infurers 
to  aft  as  merchants,  and  meddle  in  things  which  they  do  not,  or  may  not  at 
all  underfland :"  biit  that  argument  proves  too  much  ;  for  it  holds  equally 
ftrong  in  all  cafes  of  abandonment ;  and  would  therefore  equally  tend  to  prove 
'•  that  there  can  be  no  abandonment  in  any  cafe."  I  hope,  therefore,  that  this 
court  will  concur  with  foreign  writers,  that  there  is  no  inftance  where,  in  cafe 
of  a  capture  and  recapture,  and  the  lofs  total  in  it's  nature,  there  may  not  be 
an  abandonment :  and  fo  it  was  determined  in  the  cafe  of  Gofs  v.  Withers.-^ 
Mr.  Gould  and  Mr.  Afton,  contra,  for  the  defendant :  the  fubftantial  enquiry 
is,  "  whether  any  of  the  perils  infured  againft  have  happened,  to  the  detri- 
ment of  the  fhip,  fo  far  as  to  entitle  the  ihfured  to  abandon ;  within  the 
true  intent  of  the  policy  ?"  Roccius  204.  (cited  by  Mr.  Afton)  proves  that 
reftoration  before  payment  is  fufficient,  and  the  infurer  is  clear :  "  Acetiam 
quia  contraftus  affecurationis  eft  conditionalis,  &c.  reperiantur:  non  autein 
deperditac  dicuntur,  fi  poftea  reperiantur :''  the  book  goes  on  and  fays,  "  if 
the  infured  had  called  upon  the  infurer,  before  the  recapture,  &c.  that  might 
have  made  a  great  difference  ;"  it  would  be  too  rigorous,  to  allow  an  aban- 
donment by  the  owner  (who  underftands  the  beft  method  of  managing  the 
thing  infured)  to  in  infurer,  who  does  not  underftand  it ;  unlefs  the  thing  be 
rendered  really  ufelefs  to  the  owner  himfelf:  there  is  no  inftance  of  an 
attempt  to  abandon  a  ftiip  at  a  time  whQn  it  is  in  fafetv :  there  can  be  no 

folid 


RECAPTURE.  447 

folid  ground  to  diftinguifli  benvcen  the  cafe  of  a  ranfoni,  and  the  cafe  of 
faLvage  to  be  paid  upon  a  recapture,  at  the  rate  of  one-eighth  of  the  value, 
under  a  pofitive  a6l  of  parHament :  and  as  to  fraud,  though  particular  fa6ls 
of  fraud  are  not  to  be  prefumed,  yet  that  the  court  will  prevent  fraud,  as  far 
as  lies  in  their  power ;  whereas  enlarging  the  right  to  abandon  will  certainly 
encourage  it. — Mr.  Norton,  in  reply  :  there  is  a  fubftantial  difference  between 
ran/om  and  Jalvage,  one  is  an  aft  of  the  owtier  (or  his  agents) ;  the  other,  the 
aft  of  a  ftranger  :  and  a  ranfom  is  an  ekElion  to  take  an  average  lofs,  indead 
df  demanding  as  for  a  total  one :  Roccius  204.  is  a  general  adertion  ;  which 
may  depend  upon  circumftances,  and  is  not  applicable  to  the  prcfent  cafe ; 

the  general  poll  lion  is  not  law. Lord  Mansfield  now  delivered  the  refo- 

lution  of  the  court;  having  firfl  flated  the  cafe,  as  fettled  at  nifi  prius : — 
the  plaintiff"  has  averred  in  his  declaration,  as  the  bafis  of  his  demand  for  a 
total  lofs,  "  that  by  the  capture  the  fhip  became  wholly  loft  to  him :"  the 
general  queftion  is,  "  whether  the  plaintiff,  who  at  the  time  of  his  adion 
brought,  at  the  time  of  his  offer  to  abandon,  and  at  the  time  he  was  Jir/l  apprifed 
of  any  accident  having  happened,  had  only,  in  truth,  fuftained  an  average 
lofs,  ought  to  recover  for  a  total  one  ?" — In  fupport  of  the  affirmative,  the 
counfel  for  the  plaintiff  infilled  upon  the  four  following  points ;  firft,  that  by 
this  capture  the  property  was  changed,  and  therefore  the  lofs  total  for  ever : 
fecondly,  if  the  property  was  not  changed,  yet  the  capture  was  a  total  lofs : 
thirdly,  that  when  the  fhip  was  brought  into  Plymouth,  particularly  on  the 
26th  of  June,  the  recovery  was  not  fuch  as,  in  truth,  changed  the  totality  of 
the  lofs  into  an  average :  fourthly,  fuppofing  it  did,  yet  the  lofs  having  once 
been  total,  a  right  veiled  in  the  infured  to  recover  the  whole  upon  abandon- 
ing ;  which  right  could  never  afterwards  be  divefled,  or  taken  from  him  by 
any  fubfequent  event. — -As  tb  the  firft  point ;  if  the  change  of  property  was 
at  all  material  as  between  the  infurer  and  infured,  it  would  not  be  applicable 
to  the  prefent  cafe ;  becaufe  "  by  the  marine  law  received  and  pfaftifed  in 
England,  there  is  no  change  of  property  in  cafe  of  a  capture  before  condem- 
nation;" and  now,  by  the  aft  of  parliament,  in  cafe  of  a  recapture,  the  jMi 
pojlliminii  continues  for  ever :  I  know,  many  writers  argue,  between  the 
infurer  and  infured,  from  the  diflinftion,  "  whether  the  property  was  or  was 
not  changed  by  the  capture,  fo  as  to  transfer  a  complete  right  from  the 
enemy  to  a  recaptor  or  neutral  vendee  againfl  the  former  owner  ?"  but  the 
arbitrary  notions  concerning  the  change  of  property  by  a  capture,  as  between 
the  former  owner  and  a  recaptor  or  vendee,  ought  never  to  be  the  rule  of 
decifion,  as  between  the  infurer  and  infured  upon  a  contraft  of  indemnity, 
contrary  to  the  real  truth  of  the  faft :  and  therefore  I  agree  with  the  counfel 
for  the  plaintiff,  upon  their  fecond  point,  "  that  by  this  capture,  while  it 
continued,  the  fhip  was  totally  loft;"  though  it  be  admitted,  "  that  the 
property  in  cafe  of  a  recapture  never  was  changed,  but  returned  to  the  former 
o^vner:"  the  third  point  depends,  as  every  queftion  of  this  kind  muft,  upon 
the  particular  circumjlances :  it  does  not  neceffarily  follow,  that  becaufe  there 
is  a  recapture,  therefore  the  lofs  ceafes  to  be  total :  if  the  voyage  is  abfo- 
lutely  loft,  or  not  worth  purfuing ;    if  the  falvage  is  very  high ;    if  further 

expence 


4i8  RECAPTURE. 

expence  is  neceffary ;    if  the  infurer  will  not  engage,  in  all  events,  to  bear 
that  cxpcnce,  though  it  fhould  exceed  the  value,  or  fail  of  fuccefs ;  under 
thefe  and  many  other  like  circumflances,  the  infured  may  difmtangle  himfelf 
and  abandon,   notwithftanding  there   has   been  a   recapture  : — the    Guidon, 
among  other  defcriptions  of  a  total  lofs  where  the  infured  may  abandon, 
inftances,  "  if  the  damage  exceeds  half  the  value  of  the  thing,  or  if  the  voyage 
be  loft,  or  fo  difturbed  that  the  purfuit  of  it  is  not  worth  the  freight :"  but  in 
the  prefent  cafe,  the  voyage  was  fo  far  from  being  loft,  that  it  had  only  met 
with  a  J/iort  temporary  obftruftion,  the  fliip  and  cargo  were   both  entirely 
fafe  ;  the  expence  incurred  did  not  amount  to  near  half  the  valuer  and  upon 
the  26th  of  June,  when  the  fhip  was  at  Plymouth,  and  the  offer  made  to 
abandon,  the  infurer  undertook  to  pay  all  charges  and  expences  the  plaintiff 
fliould  be  put  to  by  the  capture  : — the  only  argument  to   fliew  that  the  lofs 
had  not  then  ceafed  to  be  total,  was  built  upon  a  miftaken  fuppoliiion,  "  that 
the   recaptor  had  a  right  to  demand  a  fale,  and  put  a  ftop  to  any  further 
profecution  of  the  voyage  :"  but  that  is  not  fo  ;    the  property  returned  to  the 
plaintiff,  pledged  to  the  recaptors  for  one-eighth  of  the  value,  as  falvage   for 
retaking  and  bringing  the  ftiip  into  an  Englifti  port ;    upon  paying  this,  the 
owner  was  entitled  to  reftitution ;    the  recaptor  had  no  right  to  fell  the  fliip  : 
if  they  differed  about  the  value,  the  court  of  admiralty  would  have  ordered 
a  commilhon  of  appraifement ;    in  this   cafe,  it  was  the  intereft  of  the  owner 
of  the  ftiip,  the  owners  of  the  cargo,  and  the  recaptor,  that  ffie  ffiould  forth- 
with proceed  upon  her  voyage  from  Plymouth  to  London  ;    but  had  the 
recaptor  oppofed  it,  or  effefted  a  delay,  the  court  of  admiralty  would  have 
made  an  order  for  bringing  her  immediately  to  London,  her  port  of  delivery, 
upon  reafonable  terms :  therefore  it  is  moft  clear,  that  upon  the  26th  of  June, 
the  ffiip  had  fuftained  no  other  lofs  by  reafon  of  the   capture,  than  a  ffiort 
temporary  obftruftion,  and  a  charge  which  the  defendant  had  offered  to  pay 
andfatisfy, — This  brings  the  whole  to  the  fourth  and  laft  point:  the  plaintiff''s 
demand  is   for  an  indemniiy ;    his  aclion,  then,  muft  be  founded  upon  the 
nature  of  his  damnification,  as  it  really  is,  at  the  time  the  a6lion  is  brought : 
it  is  repugnant,  upon  a  contraft  of  indemnity,  to  recover  as  for  a  total  lofs, 
v»hen  the  Jiiial  event  has   decided  that  the    damnification,    in   truth,  is  an 
average,  or  oerhaps  no  lofs  at  all :    whatever  undoes  the   damnification,   in 
whole  or  in  part,   muft  operate  upon  the  indemnity  in  the  fame  degree  :  it  is 
a  contradi6lion  in  terms,  to  bring  an  aftion  for  indemnity,  when,  upon  the 
lohole  event,  no  damage  has  been  fuftained :  this  reafoning  is  fo  much  founded 
in  fenfe  and  the  nature  of  the  thing,  that  the  common  law  of  England  adopts 
it   (though  inclined  to  ftriftnefs) :    the  tenant   is  obliged  to  indemnify  his 
landlord  from  wafte ;    but  if  the  tenant  do,   or  fuffer  wafte  to  be  done,  in 
houfes,  yet  if  he  repairs  before  any  a6tion  is  brought,  there  lies  no  a6lion  of 
wafte  againft  liim  ;    but  he  cannot  plead,  "  non  fecit  vaftum,"  but  the  fpecial 
matter:  the  fpecial  matter  ftiews,  that  the  injury  he\x\grepairedhe{oxt  the  a6lion 
.    was  brought,  the   plaintiff  had  no  caufe  of  aftion  ;  and  whatever  takes  away 
the  caufe,  takes  away  the  atdon  : — fuppofe   a  furety  fued  to  judgment,  and 
afterwards,  before  an  aftion  is  brought,  the  principal  pays  the  debt  and  cofts, 

and 


RECAPTURE.  ^^g 

and  procures  fatisfaftion  to  be  acknowledged  upon   record ;    the  furety  can 
have  no  action  of  indemnity,   becaufe  he  is  indemnified  before  any  aftion 
is  brought :  if  the  demand  or  cau/e  of  aftion  does  not  fubfifl  at  the  time  the 
aftion  is  brought,  the  having  exifted  at  any  former  time  can  be  of  no  avail : 
— but,  in  the   prefent  cafe,  the  notion  of  a  "  vefted  right  in  the  plaintiff, 
to  fue  as  for  a   total  lofs  before  the  recapture,"   is  fiditious  only,  and  not 
founded  in  truth  ;    for  the  infured  is  not  obliged  to  abandon  in  any  cafe  : 
he  has  an  cledion  ;    no  right  can   veft  as  for  a  total  lofs,  till  he  has  made 
that  eleftion  ;   he  cannot  eleft  before  advice  is  received  of  the  lofs  ;    and 
if  that  advice    fhews  the  peril  to  be  over,  and  the  thing  in  fafety,   he  cannot 
eleft  at  all ;    becaufe  he  has  no  right  to  abandon,  when  the  thing  is  fafc. — 
Writers  upon  the  marine    lav/  are  apt  to  embarrafs  general  principles,  with 
the  pofitive  regulations  of  their  own  country;    but  they  feein  all  to  agree, 
"  that  if  the  thing  is  recovered  before  the  money  paid,  the  infured  can  only  be 
entitled  according  to  the  final  event."     Roccius,  who  coUeCis  the  opinion  of 
all  the  authors  before  his  time,  and  draws  conclufions  or  maxims  (fohitions 
of  queftions)    from  them,  which  he  calls  Notabiiia,  in  the  place  cited  at  the 
bar    [fo,    204.    not.  50.)  puts   this  queftion : — "  ad'ecurator   qui  jam   folvit 
aeftimationem  mercium  deperditarum,    fi  poflea  diftae  merces  appareant,  et 
recuperatae    fint,    an    poffit   cogere    dominum   ad    accipiendas    illas,    et   ad 
reddendam    fibi   aeftimationem,    quam   dedit  ?"    the    anfwer  is,   "  diftingue, 
aut    merces,   vel   aliqua   pars   ipfarum    appareant,    et   reftitui   poflint,    ante 
folutionem  aeftimationis ;    &   tunc  tenetur   dominus  mercium  illas  recipere, 
&  pro   ilia   parte   mercium  apparentium   liberabitur   affecurator :    nam   qui 
tenetur  ad  certam  quantitatem  refpe6lu  certas  fpeciei,  dando  illam,  liberatur 
ut  ibi  probatur  &  etiam  (another  reafon,  perhaps  a  better)  quia  contra6lus 
alfecurationis  eft  conditionalis  ;    fcilicet,  fi  merces  deperdantur :    non  autem 
dicuntur  deperditae,  fi  poftea  reperiantur  :    verum  fi  merces  non  appareant 
in  ilia  priftina  bonitate,  aliter  fit  aeftimatio ;    non  in  totum,  fed  prout  hinc 
valent :   aut  vero  poft  folutam   aeftimationem    ab   affecuratore,   compareant 
merces ;    &  hinc  eft  in   eleftione  mercium  aftecurati,   vel  recipere  merces, 
-vel  retinere  pretium." — In  the  cafe  of  Spencer  v.   Franco,   though  upon   a 
wager  policy,  the  lofs  was  held  not  to  be  total,  after  the  return  of  the  fliip 
Prince  Frederic  in  fafety,  though  flie  had  been  fcized  and  long  kept  by  the 
king  of  Spain,  in  a  time  of  aflual  war: — in  the  cafe  oi Pole  v.  Fitzgerald, 
though  upon   a  wager  policy,  the  majority  of  the  judges  and  the  houfe  of 
lords  held  there  was  no  total  lofs,  the  fliip  having  been  reftored  before  the  end 
of  the   four   months  : — the  prefent   attempt  is  the  firft  that  ever  was  made, 
to  charge  the  infurer  with  a  total  lofs,  upon  an  intereft  policy,  after  the  thing 
was  recovered ;    and  it  is  faid,  the  judgment  in  the  cafe  of  Gofs  v.  Withers 
gave   rife  to  it:     it  is  admitted   that  cafe  was    no  way  fimilar:    before  that 
aftion  was  brought,  the  whole  fliip  and  cargo  were  literally  lofi  ;  at  the  time  of 
the  offer  to  abandon,  2l  fourth  of  the  cargo  had  been  thrown  overboard,  the 
voyage  was   entirely   loft ;    the  remainder   of  the   cargo  was  fifli  periftiing, 
and  of  no  value  at  Milford-Haven,  where  the  flrip  was  brought  in ;   the  ftiip 
was  fo  ftiattered,  as  to  M^ant  great  and  expenfive  repairs ;   the  falvage  was 

5  S  one 


450  RECAPTURE. 

one  half,  and  the  infurer  did  not  engage  to  be  at  any  expence  ;  it  did  not 
appear  that  it  was  worth  while  to  try  to  fave  any  thing  ;  and  the  recaptor 
(though  entitled  to  one  half,  as  well  as  the  owner  of  the  fiiip  and  cargo) 
left  the  whole  to  perilh,  rather  than  be  at  any  further  trouble  or  expence  : 
— but  it  is  faid,  "  though  the  cafe  was  entirely  different,  fome  part  of  the 
reafoning  warranted  the  propofition  now  inferred  by  the  plaintiff  from  it :' 
the  great  principle  relied  upon  was,  "  that,  as  between  the  infurer  and 
infured,  the  contraft  being  an  indemnity,  the  truth  of  the  fad  ought  to  be 
regarded  ;  and  therefore  there  might  be  a  total  lofs  by  a  capture,  which 
could  not  operate  a  change  of  property ;  and  a  recapture  fliould  not  relate 
bv  fiftion  (like  the  Roman  jus  poflliminii)  as  if  the  capture  had  never 
happened,  unlefs  the  lofs  was  in  truth  recovered :  this  reafoning  proved,  e 
conver/o,  that  if  the  thing  in  truth  'wasjafe,  no  artificial  reafoning  fliall  be 
allowed  to  fet  up  a  total  lofs :  the  words  quoted  at  the  bar  were  certainly 
ufed,  "  that  there  is  no  book  ancient  or  modern,  which  does  not  fay,  that 
in  cafe  of  the  fliip  being  taken,  the  infured  may  demand  as  for  a  total  lofs, 
and  abandon:"  but  the  propofition  was  applied  to  the  fubjeft  matter;  and 
is  certainly  true,  provided  the  capture,  or  the  total  lofs  occafioned  thereby, 
continue  to  the  time  of  abandoning  and  bringing  the  a6lion :  the  cafe  then 
before  the  court  did  not  make  it  neceffary  to  fpecify  all  the  reflriftions  ; 
but  I  will  read  to  you,  verbatim,  from  my  notes  on  the  judgment  then 
delivered,  what  was  faid,  to  prevent  any  inference  being  drawn,  beyond 
the  cafe  then  determined  :  I  faid, — "  In  queftions  upon  policies,  the  nature 
of  the  contract,  as  an  indemnity,  and  nothing  elfe,  is  always  liberally 
confidered ;  there  may  be  circumjlances  under  which  a  capture  would  be  but 
a  fmall  temporary  hinderancc  to  the  voyage,  perhaps  none  at  all  ;  as  if  a 
fhip  was  taken,  and  in  a  few  days  efcaped  entirely,  and  purfued  her  voyage : 
there  are  circumftances,  under  Avhich  it  would  be  deemed  an  average-lofs ; 
as  if  a  fiiip  fliould  be  taken,  and  afterwards  ranfomed :"  and  in  another  part, 
I  faid, — "  I  know,  in  later  times,  the  privilege  of  abandoning  has  been 
reftrained  ;  but  there  is  no  danger  in  the  prefent  cafe  :  the  lofs  was  total  at 
the  time  it  happened  ;  it  continued  total,  as  to  the  deflruflion  of  the  voyage; 
a  moietv  mull  be  paid  for  falvage,  befides  other  great  cofls  and  expences  ; 
what  could  be  faved  of  the  goods  might  not  be  worth  the  freight,  for  fo  much 
of  the  voyage  as  they  had  gone  when  they  were  taken  ;  the  cargo,  from  its 
perifliable  nature,  mull  have  been  fold  or  thrown  away  where  it  was  brought 
in ;  the  fliip,  in  fo  (battered  a  condition  as  might  make  it  only  worth  the 
materials  to  be  fold  ;"  and  more  to  the  fame  effeft. — From  this  way  of 
reafoning,  it  did  by  no  means  follow,  that  if  the  ftiip  and  cargo  had,  by  the 
recapture,  been  broughty^/^  to  the  port  of  delivery,  without  having  fuflained 
any  damage  at  all,  that  the  infured  might  abandon.  But,  without  dwelling 
longer  upon  principles  or  authorities,  the  confequences  upon  the  prefent 
queflion  are  decifive  :  it  is  impoffible  that  any  man  fhould  defire  to  abandon 
in  a  cafe  circumflanced  like  the  prefent,  but  for  one  of  two  reafons,  viz. 
either  becaufe  he  has  over-valued,  or  becaufe  the  onarkethdiS  fallen  below  the 
original  price  :  the  only  reafons  which  can  make  it  the  interefl  of  the  party 

to 


RECAPTURE. 


45  i 


to  defire,  are  conclufive  againft  the  allowing  it :  it  is  unjuft  to  turn  the  fall 
of  the  market  upon  the  infurer,  who  has  no  concern  in  it,  and  who  could 
never  gain  by  the  rife  ;    and  "  an  over-valuation  is  contrary  to  the  general 
policy  of  the  marine  law,    contrary  to  the  fpirit  of  the  a6l  of  19  Geo.  2.   a 
temptation  to  fraud,  and  a  fource  of  great  abufe  ;   therefore  no  man  fhould 
be  allowed  to  avail  himfelf  of  having  over-valued  :"    if  the  valuation  be  true, 
the  plaintiff  is  indemnified  by  being  paid  the  charge  he  has  been  put  to  by 
the  capture ;    if  he  has  over-valued,  he  will  be  a  gainer   if  he  is  permitted 
to  abandon  ;    and   he  can  only  defire   it,  becaufe   he  has  over-valued  ;    and 
this  was  avowed  upon  the  firft  argument ;   and  that  very  reafon  is  conclufive 
againft  it's  being   allowed :    the  infurer,   by  the  marine  law,  ought  never  to 
pay  lefs,  upon  a  contraft  of  indemnity,  than  the  value  of  the  lofs  ;    and  the 
infured  ought  never  to  give  more  ;    therefore  if  there  was  occafion  to  refort 
to   that  argument,  the    confequence  of  the    determination  would  alone  be 
fufhcient  upon  the  prefent  occafion  :    but  upon  principles,   this  aflion  could 
not  be  maintained  as  for  a  total  lofs,  if  the  queftion  was  to  be  judged  by  the 
flrifteft  rules  of  common  law ;    much  lefs  can  it  be  fupported  for  a  total  lofs, 
as  the  queftion  ought  to  be    decided  by  the  large  principles  of  the  marine 
law,  according  to  the  fubftantial  intent  of  the  contraft,   and   the  real   truth 
of  the /ad  :    the  daily  negotiations  and  property  of  merchants  ought  not  to 
depend  upon  fubtilties  and  niceties  ;  but  upon  rules  eafily  learned  and  eafily 
retained  :    becaufe  they  are  the  di6lates  of  common  fenfe,   drawn  from  the 
truth  of  the    cafe  : — if  the  queftion  is  to  depend  upon  the  faft,  every  man 
can  judge  of  the  nature  of  the  lofs,   before  the  money  is  paid  ;    but  if  it  is 
to   depend  upon   fpeculative  refinements,  from   the    law   of  nations,    or  the 
Roman    jus    poftliminii,  concerning  the   change   or  revcfling   of  property ; 
no  wonder  merchants  are  in  the  dark,  when  doftors  have  differed  upon  the 
fubje6i,  from  the  beginning,  and  are  not  yet  agreed. — To  obviate  too  large  an 
inference  being  drawn  from  this  determination  ;  I  defire  it  may  be  underftood, 
that  the   point  here  determined  is,  "  that  the  plaintiff,  upon  a  policy,   can' 
only  recover  an  indemnity,  according  to  the  nature  of  his  cafe  at   the  time  of 
the  aBion   brought,   or  (at   moft)   at  the  time  of  his  offer  to  abandon  :" — we 
give   no  opinion,  how  it  would  be,    "  in  cafe  the  fhip  or  goods  be  reftored 
in  fafety,  betzoeen  the  offer  to  abandon,    and  the  aclion  brought ;    or  between 
the  commencement  of  the  aftion  and  the  verdift :"   and  particularly  I  defire, 
that  no  inference  may  be  drawn,  "  that  in  cafe  the  fliip  or  goods  fliould  be 
reftored  after  the  money  paid  as  for  a  total  lofs,  the  infurer  could  compel  the 
infured  to  refund  the  money,  and  take  the  ftiip  or  goods :"  that  cafe  is  totally 
different  from  the  prefent,  and  depends   throughout  upon   different  rcafons 
and  principles  ; — here  the  event  had   fixed  the  lofs  to  be  an  average  only 
before  the    aftion  brought,   before  the    offer   to   abandon,   and   before  the 
plaintiff  had  notice    of  any  accident ;  confequcntly  before  he  could  make 
an  eleftion : — therefore,    under    thefe   circumftances,    we    are    of  opinion, 
that  he    cannot  recover  for  a    total,   but  for    an  average    lofs    only ;    the 
quantity  of  which  is  eftimated  and  afccrtained  by  the  jury:    the  judgment 
muft  be  entered  up  as  for  the  average  lofs  ftated  in  the  cafe. — 2    Burr.   1198. 
Monday,  8  June  1761. — Hamcltonv.  Mendes, 

5'    By 


152 


RECLAIM. 


5.  By  Stat.  16  Geo.  3.  c.  5.  f.  24. — Any  (hip,  veffel,  or  boat,  taken  as  prize, 
or  any  goods  therein,  proved  to  have  belonged  to  his  majefly's  fubjefts  of 
Great-Britain  or  Ireland,  and  continuing  in  their  allegiance.  Sec.  which  were 
before  taken  by  any  of  his  majefly's  rebellious  colonies,  and  afterwards 
retaken  by  any  of  his  majefly's  fhips  of  war,  or  other  fliip,  boat,  &c.  fhall 
be  rejlored  to  fuch  former  proprietors,  paying  one-eighth  part  thereof  in  lieu 
o^  faLvage. 

6.  By  Stat.  17  Geo.  3.  c.  7.  f.  18. — Prizes  which  had  been  taken  from 
his  majefly's  fubjedls  not  in  rebellion,  retaken  by  veffels  having  commijjions 
for  taking  fliips,  &c.  belonging  to  the  rebellious  colonics.  Sic.  to  be  rejlored, 
on  payment  o^  one- eighth  part,  &c. 

7.  By  Stat.  i()  Gen.  3.  c.  67. — Prizes  which  had  been  taken  from  his 
majefly's  fubjefts  not  in  rebellion,  to  be  rejlored  to  them,  on  payment  of 
one-eighth  part  of  the  value  thereof;  but  if  any  fuch  (hip  had  been  ufed  by 
the  enemy  as  a  man  of  war,  a  moiety  of  the  value  to  be  paid  on  refloring 

thereof. This  aft  fliall  continue  in   force   during  the   prefent   hollilities 

with  France,  and  no  longer. 

8.  Ii'  any  fhip  of  our  fubjefts  is  retaken  from  the  enemy,  after  having 
continued  twenty-four  hours  in  his  pofTefTion,  it  fhall  be  good  prize  :  and  if 
the  recapture  be  made  within  the  twenty-four  hours,  it  fhall  be  rejlored  to  the 
proprietoi-  with  all  that  was  on  board,  except  one-third,  which  fliall  be  given 
to  the  fliip  that  made  the  recapture. — Ordin.  of  France. 

g.  If  it  happens  that  the  crew  fhould  themfelves  recover  the  fhip  from 
the  enemy  ;  this  would  not  be  a  recapture,  by  virtue  of  which  they  could 
pretend  any  right  to  the  vellel,  or  the  flipulated  falvage  :  there  would  only 
be  due  to  them  a  fimple  recompence. — Sentence  at   Marfeilles,  8  Jan.    1748. 

Nothing  can  be  objefted   to  this ;    the  crew  having  a6led  as  well  for 

their  own  benefit,  in  procuring  their  liberty,  and  the  recovery  of  their  wages, 
as  for  that  of  the  concerned  in  the  (hip  and  cargo :  the  recompence,  however, 
ought  to  be  in  proportion  to  the  importance  of  the  objeft  ;  and  borne  as  a 
general  average,  like  a  ranfom,  or  the  charges  of  redeeming  an  hoflage. — 
2  Valines  Comm.  258. 

10.  See  Abandonment,  Average,  Capture,  Claim,  Colony,  Cruife,  Damage, 
Freight,  Interejl  or  no  Interejl,  Piracy  &  Pirate,  Privateer,  Prize,  Ranfom, 
Salvage,  Total  Lofs. 

RECLAIM. 

1.  TT7HEN  a  fliiphappensto  be  afliore,  orftranded,  or  taken  and  carried 

^  ^      in  by   privateers   or  others,    the    afFured   fhall  give    immediate 

notice  thereof  to  his  affurers,  and  confult  with  them  about  the  moft  proper 

means 


REGISTER. 


453 


means  for  recovering,  redeeming,  or  reclaiming  the  fliip  and  cargo  ;    and  the 

•adlired  is  to  proceed  and  aft  in   conformity  to  what  is  then  agreed  upon  ; 

and  the  affurers  are  obhged    to  pay  the  expences  required  for  that  purpofe, 

either  immediately  down  or   by    degrees. Althougli  the    affured   in   the 

beforementioned  cafes  (as  alfo  in  that  of  ravfom)  is  not  at  hberty  to  do  or 
aft  any  thing  without  the  knowledge  and  confent  of  his  aflUrers ;  yet,  when 
the  affurers  are  not  on  the  fpot,  he  is  obliged  and  bound  to  carry  on  the 
appeal  of  reclaiming  by  himfelf,  though  at  their  rifque  and  charge,  and  to 
obferve    their  benefit    and  advantage,  by  all  the  mod  probable  means  in  his 

power,    giving  them  advice  of  all  that  paffcs  without  delay. If  die  appeal 

lodged  for  the  reclaiming  is  not  decided  within  fix  months,  or  that  there  is 
but  little  appearance  that  the  fame  will  be  brought  to  a  fpeedy  iffue,  but  that 
in  the  mean  while  fome  damage  atlually  appeared  by  the  decay  of  the  goods  ; 
then  the  affurer  fhall  be  obliged  to  pay  to  the  affured  fuch  prefent  damage 
upon  the  fpoiled  goods,  and  the  charges  already  expended  thereupon,  on 
account. — Ordin.  of  Hamb. 

2  See  Abandonment,  Appeal,  Capture,  Claim,  Document,  General  Average, 
Lofs,  Notice,  Perifliable  Commodities,  Pirate,  Prize,  Properly,  Rarifovi,  Re- 
capture, Salvage,    Total  Lofs,  Wages,  Wreck. 


REGISTER. 

1.  'T^HE  obliging  brokers  to  regiller  copies  of  policies  is  fo  much  the  more 
-*-  neceffary,  as  the  infured  may  happen  to  tear,  or  lofe  a  policy,  or 
that  fome  knave,  who  has  got  himfelf  infured,  may  alter  fomething  therein 
to  his  benefit,  and  difadvantage  of  the  infurers ;  in  which  cafe,  and  in 
other  fimilar  ones,  the  copy  which  the  broker  keeps,  may  fcrve  for  a  proof 
and  teftimonial. — Ricard's  Negoce  d'AmJl. 

2.  Policies  of  infurance  in  France,  are  generally  drawn  up  in  the 
regiflry  office  of  infurances,  in  thofe  places  where  one  is  eftablifhed  ;  and  in 
thofe  places  where  there  are  none,  the  policies  may  be  made  either  before 
a  notary  publick,  or  under  a  private  form. — 'Lex  Merc,  rcdiv.  335. — Ordin. 
of  France. 

3.  All  merchandife,  gold,  filver,  and  other  things,  which  fiiall  be 
rep-idered,  on  going  out,  in  the  royal  regifter  at  Seville,  and  other  parts 
where  the  fliips  load,  and  iii  whatfoever  parts  of  the  Indies  the  regifter  is 
made  on  their  return;  the  perfon  to  whom  fuch  merchandife,  as  aforefaid, 
fhall  come  configned,  or  he  that  fhall  load  them,  in  regifter,  fhall  be  efteemed 
a  party;  and  may  recover  the  lofs  or  average  that  fhall  happen,  and  make 
a  refignation  to  the  infurer,  although  the  merchandife  be  not  the  property  of 
the  perfon  to  whom  they  are  configned. — : — In  whatfoever  part  of  the  Indies 
gold  and  filver  is  loaded,  and  the  regifter  expredcs  die  charge  of  making 

5  T  bad 


454 


REGULATION. 


bad  gold  good,  and  of  bad  filver  bettered  ;  the  reduftion  or  increafed  value 
fhall  not  be  at  the  rifque  of  the  underwriters  ;  but,  if  any  lofs  or  average 
happens,  they  fliail  pay  no  more  than  what  the  gold  and  filver  would  in  weight 

truly  amount  to. The  teftimony  of  the  regilter  on  coming  from  the  Indies 

is  to  be  deemed  the  true  cargoes  :  and  from  the  days  they  are  regiftered  they 
are  underflood  to  be  loaded,  notwithflanding  the  goods  may  have  been  (hipped 
before  or  afterwards :  and  let  the  day  of  their  regiflering  be  efteemed  that  of 
their  loading  ;  and  the  firft  regifter  be  always  preferred  to  the  fecond,  although 

the  fecond  (hould  be  loaded  firft. There  is  cuftomarily  fome  rifque  on  goods 

■whilft  they  are  loading  in  the  ports  in  the  Indies,  and  before  they  are  regiftered ; 
and  as  the  fiiipper  may  load  them  for  more  than  one  perfon's  account,  and  at- 
tribute the  regifter  to  whom  he  pleafes  ;  we  ordain  that  whofoever  fhall  ftiip 
any  goods,  fhall  manifeft,  before  the  fcrivener  or  notary  of  the  regifter,  the  day 
of  their  loading ;  and  declare  their  contents,  and  for  whofe  account  they  are 
Ihipped.whilft  the  regifter  is  forming,  and  the  merchant  figns  it:  and  this  de- 
claration fliall  be  equally  valid  with  the  regifter  for  the  recovery  of  any  lofs, 
that  may  happen,  from  the  infurers  :  but  where  no  declaration  has  been  made, 
before  the  notary  of  regifters,  of  what  is  loaded,  and  for  whofe  account,  the 

underwriters  are  free  from  the  rifque  on  it. In  regard  of  the  merchandife 

laden  in  the  ports  of  Spain  for  the  Indies,    unregiftered   before    the   ftiips 
departure  ;  if  there  fiiall  have    een  any  rifque  on  them,  the  notary's  book  fliall 
be  deemed  a  regifter;  with  which,  and  the  fliipper's  oath,   a   lofs  might  be 
recovered,  as  if  they  had  been  regiftered  ;    and  in  want  of  the  notary's  book, 

the  proof  muft  be  by  witneftes. It  is  not  permitted  to  make  any  policy  of 

infurance,  on  going  to,  or  coming  from  the  Indies,  on  gold,  filver,  or 
merchandife  which  (hall  not  go,  or  come,  regiftered  in  the  royal  regifter  : 
and  the  policy  fo  made  either  publicly,  or  privately,  fliall  not  oblige  the 
infurers  to  pay  any  lofs  that  may  happen. — Ordin.  of  Spain. 

4.  See  Prelim.  Difc.  35  &  feq.  Alteration  of  Policy  Voyage  or  Rifque, 
Blank,  Broker,  Court  of  Policies  of  AJfurance,  Document,  Flota,  Foreign 
Ozvner,  Policy,  Proof,   Spain. 


REGULATION. 

1.  ^  I  "'HOUGH  by  the  oldeft  ordinance  relating  to  Infurances,  made  at 
-*-  Florence  in  1523,  as  well  as  by  that  made  at  Stockholm  in  1750, 
it  appears  that  different  ftates  adopt  the  fame  fentiments  in  the  introduclion, 
which  is,  "  That  all  infurances  in  their  refpeftive  dominions,  whether  made 
for  their  own  fubjccls  or  foreigners,  fliall  be  conformable  to  the  tenor  of  their 
ordinances,  and  that  no  regard  ftiall  be  paid  to  what  may  be  alleged  of  the 
cuftoms  of  others  f  yet  we  would  furmife  that  thefe,  and  other  legiflators 
could  not  m.ean  to  extend  their  difpofitions  ^(rvo?2(^  their  own  jurifdiftions: 
for  if  it  were  fo,  no  infurances  could  be  well  made  on  adventures  in  foreign 
parts,  and  much  lefs  could  comniiftions  to.  infure  for  foreign  accounts  be 

admitted. — 


REGULATION. 


455 


admitted. — For  example,  A  at  Hamburgh  has  goods  in  Spain,  which  arc  fent 
by  a  Spanidr  {hip  to  the  Weft-Indies:    B  at  Hamburgh  infures  them  :    feme 
damage  happens  to  the  (liip  on  the  voyage,   which,  according  to  the  Spanifh 
law,   or  regulations  made  in  that  country,   has  been  deemed  a  grofs  average  ; 
and  therefore  charged  upon  A's  effefts  in  proportion  to  their  value  :    this 
charge  he  has  an  undoubted  right  to  demand  of  B  his  infurer,    though  by  the 
law  at  Hamburgh  the  damage  ihould  not  have  been  declared  a  grofs  average; 
but  a  particular  one  on  the  goods  damaged. — To  corroborate  what  we  allege 
we  will  add,   that  though  in  the  ordinance  of  Hamburgh  it  is  faid,   "  That 
every  thing  relating  to  infurance,  and  averages,  Ihall  be  judged  and  decided 
by  that  ordinance-/'    yet  another  article  in  the  fame  allows,   ''That  when 
any  damage  happens  to  the  fliip  and  cargo  during  the  outward-bound  voyage, 
it  may  be  regulated  at  the  place  of  her  unloading."    Moreover,  the  ordinance 
of  Amfterdam   fays,    "That  all    ftipulations,    and    conditions,    inferted    in 
policies,  contrary  to  the  faid  ordinance,  fhall  be  null  and  void,  notwithftanding 
the  contracling  parties  may  have  renounced  it :"    yet  in  another  article  it  is 
faid,   "except  fuch  grofs  averages  were  regulated  in  a  judicial  manner,   at 
the   place  whither  the   fliip  was  bound  ;"   confequently  we   infer  that  their 
ordinance   reaches  not  beyond   their  own  jurifdiftion. — Frequent  inftances 
have  been  met  with,    in  which  laws  and  cuftoms  have  been  unjuflly  made  a 
pretext  to  deny  the  fatisfatlion  that  was  due  to  foreigners :    one  we  fliall 
mention.     A  perfon  in   London,    for  his  friend  at  Bourdeaux,    got  i.oool. 
infurance  made  from  Martinico  to   Bourdeaux :    the  perfon  at  Bourdeaux, 
imagining  that  his   effefts  might  amount  to  double  that  value,   had  before 
infured  there  i,oool. ;  both  infurances  were  made  Under  the  general  exprefhon 
of  goods :    on  the  fliip's  arrival,    no  more  than  800I.  value  was   found  to  be 
fhipped  :    the  infurers  at  Bourdeaux,    who  had  Jirjl  underwrote  upon  thofe 
goods,   kept  the   premium  on  800I.    and  returned  the  proportion  on  200I. 
according  to  the  ordinance  :    upon  a  demand  of  a  return  of  premium  on  the 
whole  loool.    as  laft  infured,   by  the  perfon  at  London,  the  infurers  replied^ 
that  according  to  the  cuftom  of  London,   thofe   at  Bourdeaux  fliould  have 
returned  the  premium  proportionably  with  them  ;    and  conf-quently  that  the 
whole  upon  the  2,oool.  fhould  have  been  equally  fliared  : — which  naturally 
fuggefts  the  following  queftion ;    fuppofe  both  infurances  had  been  made  on 
goods  expefted  in  that  (hip  on  the  account  of  a  perfon  in  London,   and  that 
in  her  voyage  (lie  had  been  loft,   and  that  no  more  than  the  value  of  800I. 
had  been  found  to  have  been  put  on  board  her :    would  it  have  been  difputed 
in  France,  that  the  infurers  at  Bourdeaux,   having  figned  firjl,  were  obliged 
to  pay  in  full  the   Bool.?    certainly  not ;    fince  their  own  laws   fo  ordain  it. 
However  fuch  equivocations  and  difputes  may  always  be  avoided,  by  exprefting 
in  the  policy,  which  infurance  (hall  ftand  good  firft :    if  this  be  declared  when 
the  infurance  is  made,  the  infurers  in  London,  or  elfewhere,  will  never  rcfufe 
to  underwrite. — Approved  cuftoms  among  merchants  ought  doubtlefs  to  be 
greatly  regarded ;    but  the  cuftom  of  not  returning  the  premium  in  the  cafe 
above  mentioned,  after  a  clear  demonftration  of  it's  unreafonablenefs,   would 
not  be  admitted,  we  apprehend,  by  a  jury  who  fliould  duly  weigh  the  matter 

before  them. — 1  Mag.  5. 

2.     Ther5 


45S  R    E     I    N     S     U     R    A    N     C     E. 

2.  There  was  a  cultom  of  long  ftanding  relating  to  what  fums  might  be 
infured  :  but  upon  a  plain  demonftration  and  conviftion  of  it's  abfurdity,  it  was 
fet  afide.  Another  great  error  which  was  formerly  praclifcd  has  alfo  been  refti- 
fied,  viz.  the  not  making  a  proper  deduftion  for  freight,  indulto,  &c.  on  dollars, 
by  Spanifh  (hips  from  America  :  our  particular  culloms  at  home  ought  not 
to  be  made  a  reafon  for  denying  what  is  juflly  due  to  people  abroad  who  give 
us  their  premiums ;  lince  the  intent  and  meaning  of  thofe  who  pay  a  valuable 
confideration  for  infurance,  is,  that  the  infurcr^  ihall  itand  in  their  place  and 
{lead;  with  this  particular  obligation  however,  that  the  infured  fhall  neglect 
or  omit  nothing  that  may  be  for  the  intereft  of  the  infurer,  whofe  right  is 
properly  to  be  fet  forth  and  defended. — For  v/ant  of  proper  allegations  in 
favour  of  abfent  infurers,  when  damages  accrue,  many  regulations  are 
obtained  by  interefled  perfons,  very  much  to  the  prejudice  of  abfent  infurers ; 
this  is  not  to  be  wondered  at,  fince  the  judges  in  thofe  matters  may  not  be 
fufficiently  informed  of  circumflances  confonant  even  to  their  own  laws, 
on  which  they  might  ground  their  decifions  :  therefore  as  fome  laws,  by  not 
taking  in  every  circumftance,  may  want  explanation  in  many  points,  this 
ealily  accounts  for  the  fault  found  even  with  authentic  regulations  from 
abroad. — Ibid.  7. 

Q.  See  Adjuflment,  Average,  Contribution,  Ciiflom,  Double -Infurance, 
Forei'^n  Adjuftment,  General  Average,  Interejl,  Lazv,  Lofs,  Ordinance, 
Frior-Infurance,  Return,  Spain. 


REINSURANCE. 

j_  T>Y  Stat.  19  Geo.  2.  c.  37.  f.  4. — It  fhall  not  be  lawful  to  make  reaffu- 
-*-^  ranee,  unlefs  the  affurer  be  infolvent,  become  a  bankrupt,  or  die  ;  in 
either  of  which  cafes,  fuch  affurer,  his  executors,  adminiflrators,  or  afligns, 
may  make  reaffurance  to  the  amount  of  the  fum  before  by  him  allured, 
provided  it  be  expreffed  in  the  policy  to  be  a  reallurance. 

2.  Reinsurances  may  be  as  jullifiable,  and  made  with  as  little  fcruple, 
as  infurances,  provided  the  true  motives  for  doing  them  are  not  concealed. 
The  leave  given  by  the  aft  igGeo.  2.  for  the  executors  of  an  infurer,  who 
dies  folvent  and  in  good  circumftances,  to  reinfure,  is  very  necelfary,  and 
will  often  be  done  for  his  heirs  to  fecure  the  ellate  he  has  left :  but  to  make 
reinfurances  for  infolvent  infurers,  or  for  thofe  who  become  bankrupts,  will 
feldom  happen:  the  infureds  will  naturally  take  care  for  themfelves,  by 
immediately  making  frefh  infurances,  and  not  negleft  to  put  the  lofs  of  the 
principal  out  of  the  queftion,  when  they  can  do  it  by  only  paying  a  new- 
premium  :  it  would  be  highly  imprudent  to  poRpone,  and  rely  upon  any 
reinfurances  to  be  made  for  their  failed  infurer,  fince  it  cannot  be  expefted 
to  be  done  fo  foon :  and  even  fuppofing  that  a  rcinfurance  were  made  for 
the  bankrupt-infurer's  eflate,  if  a  lofs  happened,  as  the  premium   of  this 

reinfurance. 


REINSURANCE.  457 

reinfurance  muft  come  out  of  the  common  flock,  it  \s'ould  feem  tliat  the 
recovery  of  fuch  lofs  ought  to  be  for  the  benefit  of  the  body  of  creditors  : 
and  thus  the  infured  creditor  would  receive  but  a  dividend  equal  with  others  : 
therefore  common  fcnfe  diclates  to  the  infured,  that  he  ought  to  do  the  befl 
forhimfelf,  whil ft  lie  has  it  in  his  power,  that  is,  make  a /rr/7z  infurance ; 
whereby  he  will  remain  a  creditor  againft  the  bankrupt's  eftate  only  for  what 
premium  he  paid,  or  any  cofts  that  attended  it :  and  it  is  upon  this  principle 
we  maintain,  that  whenever  the  infureds  can  make  in  time  fredi  infurance  for 
any  unexpired  policies  that  had  been  figned  by  a  bankrupt  infurer,  they 
ought  not  to  be  admitted  as  creditors  in  the  bankrupt's  eftate  for  more  than 
the  premium. — The  a6l  pafled  for  not  permitting  reinfurances,  except  in  the 
recited  cafes,  was  intended  to  hinder  fome  gaming  reinfurances  then  iii 
vogue  ;  but  we  think  the  bad  caufes  only  fliould  have  been  excepted ;  for 
as  it  now  ftands,  it  deprives  the  London  infurcrs,  without  any  juft  reafon, 
of  the  liberty  to  reinfure  themfelves,  when  they  have  a  mind  to  difconiinue. 
their  rifques  ;  and  it  may  oftentimes  be  necelfary,  even  for  a  pcrfon  in  good 
circumftances,  to  drop  his  infurance  bufmefs,  and  to  reinfure  all  his  depend- 
ing rifques.  We  remember  that  formerly  fome  people  in  London  ufed  to 
make  a  branch  of  trade  of  having  their  friends  abroad  underwrite  for  them, 
and  then  reinfuring  themfelves  at  home  at  a  lower  premium  :  we  own  we 
cannot  perceive  that  any  more  harm  could  follow  from  this,  than  from 
executing  it  by  commiftion  :  on  the  contrary,  if  the  premium  was  increafed, 
whether  it  was  received  by  the  infurer,  or  reinfurer,  was  not  material,  as  they 
both  refided  in  England.  However  this  fort  of  trade  has  it  feems  dropt  of 
itfelf,  as  on  certain  occafions  gentlemen  were  condemned  to  pay  as  infurers 
abroad,  without  ever  having  been  able  to  recover  from  their  reinfurers  in 
London. — 1  Mag.  93. 

3.  Both  the  infurers  and  infured  fliall  be  allowed  to  make  after- 
infurances  either  at  a  higher  or  lower  premium  ;  the  infurers  to  the  amount 
of  what  they  themfelves  had  infured,  but  not  more  ;  and  the  infured  on 
account  of  the  premium  they  have  paid,  and  other  charges  of  infuring  : 
as  likewife  for  the  more  certain  and  equitable  payment  by  the  infurcrs,  or 
their  folvability. — Ordin.  of  Koningjb. 

4.  If  an  afturer  is  defirous  that  another  fhould  in  his  ftead  aftijre  again 
the  rifque  he  has  taken  upon  himfelf,  he  has  indeed  liberty  to  do  fo,  but  is 
however  obliged  to  difcover  faithfully  to  the  afturer  that  undertakes  tlie 
reaffurance,  all  the  knowledge  which  he  has,  concerning  the  fhip  and  goods 

infured,  and  to  exprefs  the  fame  plainly  in  the  policy. The  firft  afturer 

remains  neverthelefs  as  firmly  bound  as  before  to  the  party  he  aftured,  and 
can  no  way  prejudice  them  by  fuch  reaffurance. — Ordin.  of  Hamb. 

5.  The  affurers  may  get  themfelves  infured  by  others  (for  more  or  Icfs 
premiums  than  thofe  received)  for  the  fums  which  they  ftiall  have  infured ; 
and  the  aftured  may  likewife  reinfure  themfelves  by  others,  as  well   for  the 

^  U  premiums 


458  R    E     L     A    D     I    N     G. 

premiums  that  they  paid,  as  for  the  contingency  of  the  recovery  from  the 
firft  aflurers ;  expreding  the  circumftances  of  the  one  and  the  others  in  the 
policy. — Or  din.  of  Bilb. 

6.  It  fliall  be  lawful  for  infurers  to  have  reinfurance  made  on  the  effefts 
by  them  infured :    and  for  the  infured  to  have  infurance  made  on  the  coft  or 

premium   of  the   infurance,    and   the  folvability   of   the    infurers. The 

premiums  of  the  reinfurance  may  be  either  more  or  lefs  than  thofe  of  the 
infurance. — Or  din.  of  France. 

7.  An  infurer  (in  France)  in  reinfuring  himfelf  cannot  infure  the  premium 
•which  he  hath  agreed  and  given  credit  for ;  becaufe  this  premium  being 
already  acquired  by  him,  there  is  no  rifque  of  it. — 2  Valins  Comm.  6j. 

8.  Remarks. — In  the  foregoing  extraft  from  Mr.  Magens's  Effay  on 
Infurance,  he  fays,  that  (in  cafe  of  the  infurer  becoming  a  bankrupt)  "  the 
infured  ouo-ht  to  make  a.  fre/h  infurance,  whereby  he  will  remain  a  creditor 
againfl:  the  bankrupts  eftate  only  for  what  premium  he  paid,  or  any  cofts 
attendino-  it :" — and  further,  that  "  the  infured  ought  not  to  be  admitted  as 
creditor  for  more  than  the  premium :" — but,  it  mufl  be  obferved  that,  by  the 
flat,  iq  Geo.  2.  c.  32.  f.  2.  the  infured  is  "  admitted  to  claim,  before  the  lofs 
hath  happened,  and  after  the  lofs  or  contingency  fhall  have  happened,  to 
prove  the  debt  and  demand,  as  if  the  lofs,  &c.  had  happened  before  the 
ifluing  of  the  commiflTion  of  bankruptcy  againfl  the  infurer,  and  to  have  a 
proportionable  dividend  of  his  eftate  :" — therefore  Mr.  Magens  was  miftaken 
in  faying  that  "  the  infured  will  remain  a  creditor  for  the  premium,  &c. ;" 
nor  would  he  be  entitled  to  claim,  or  prove  any  thing  under  the  commiflion, 
except  as  is  above  expreffed  in  the  aft  19  Geo.  2.  c.  32. — The  infured  s 
making  or  not  making  a  frefti  infurance,  is  a  matter  of  prudence,  which 
concerns  himfelf  only,  and  a  tranfaftion  fubfequent  to  his  connexion  with 
the  infurer  and  his  eftate. — The  intention  of  the  aforementioned  aft  19  Geo. 
2.  c.  37.  in  allowing  the  "  executors,  adminiftrators,  and  affignees"  of  the 
infurer  to  make  reaflurance,  feems  to  have  been,  to  enable  them  thereby  to 
provide  aftets  to  anfwer  the  demand  which  the  infured  is  authorifed,  by  the 
other  aft  of  19  Geo.  2.  c.  32.  to  make  on  the  eftate,  for  any  lofs  that  might 
happen  after  the  infolvency  or  deceafe  of  the  infurer. 

9.  See  Bankrupt,  Bottomry,  Inter efl,  Out-Ports,  Premium,  Ranfom. 

R     E     L     A     D     I     N     G. 

1.  TF  goods   ftiould  happen  to  be   lawfully   infured,   and   afterwards   the 

i  veflel  becomes  difabled,  by  reafon  of  which  they  relade,  by  confent 

of  the  fupercargo  or  merchant,  into  another  veffel,  and  that  veflel,   after 

arrival,  proves  the  Ihip  of  an  enemy,  by  reafon  of  which  the  fliip  becomes 

fubjeft 


1 


REPAIR. 


459 


fubjefl  to  feizure ;  yet  in  this  cafe  the  infurers  (hall  anfwer ;  for  that  this  is 
fuch  an  accident  as  is  within  the  intention  of  the  policy. — Molloy,  b.  2.  c.  7. 
f.  15.  cites  Ritterjlius  ad  Leg.  Contrad.  23.  de  rcg.  jur.  cap.  18.  p.  236,  237. 
Stypman.  dido  loco.  n.  335. 

2.     See  Accident,  NeceJJity,  Seizure,  Ship  or  Ships. 

REPAIR. 

1.  'THHE  general  rule  of  taking  off  one-third  from  any  repair,  to  be  borne  by 
-*-  the  owners  (in  confideration  of  the  fliip  being  fupplied  with  new  work 
and  materials  in  place  of  the  old)  and  allotting  two-thirds  to  be  paid  by  the 
underwriters,  will,  like  all  oxh^r  general  rules,  not  hold  good  in  every  inftance 
with  the  fame  exaft  degree  of  juftice  : — one-third  is  deducted  from  the  repairs 
of  a  fliip  if  fhe  has  met  with  any  accident  only  in  her  fecond  voyage,  when 
it  is  a  great  deal  too  much  ;  and  therefore  this  proportion  muft  alfo  be  adhered 
to  at  other  times,  when  it  is  too  little  ;  fetting  inftances  of  one  fort  againft 
thofe  of  the  other,  and  following  this  Jixed  proportion  as  the  faireft  rule 
on  the  whole. 

2.  The  fliip  Seymour  laying  at  anchor,  the  20th  of  06lober  1744, 
in  the  harbour  at  Jamaica,  full  loaden  with  fugar,  was  ready  to  depart  for 
Briftol,  having  all  her  {lores  on  board  ;  but  a  violent  hurricane  arofe,  which 
drove  her  from  her  anchors,  and  (he  run  alhore  ;  fhe  had  feven  feet  water 
in  her,  and  all  her  mads  were  cut  aNvay  to  prevent  her  ovcrfctting;  by  which 
precaution  the  greateft  part  was  flill  preferved,  but  (he  was  obliged  to  be 
unloaded,  and  part  of  ihs  fugar  was  wafhed  away  : — although  the  ftnp 
appeared  like  a  mere  wreck,  yet  upon  narrow  infpeftion  it  was  judged  flill 
prafticable  to  repair  her:  her  freight  amounted  to  a  confidcrable  fuin,  and 
it  was  worth  while  to  be  at  the  expence  it  would  require  ;  which  indeed  ought 
to  be  very  well  weighed  and  confidered,  the  expences  at  Jamaica  being 
much  higher  than  in  Europe  ;  and  they  might  even  have  exceeded  the  full 
value  of  the  (hip : — flie  was  repaired  accordingly,  and  within  fix  months  put 
in  a  condition  to  profecute  her  voyage  for  Briflol  ;  in  the  room  of  the 
fugar  that  was  waflied  out  flie  took  in  other,  and  fo  again  made  up  a  full 
loading  as   flie  had  before :    fhe   arrived  fafe   at  Briflol,    and  delivered  her 

cargo. But  the   infurers    on  freight    alleged   that  nothing   was   lofl   on 

freight,  and  that  the  repairs  of  the  flip  concerned  only  the  alfurers  upon  the 
hull  of  the  fame  :  the  affair  was  therefore  left  to  reference,  on  the  following 
queflions,  viz. — what  part  of  the  charges,  or  how  much  per  cent,  is  to  be 
paid,  firfl,  by  the  aflurers  on  the  fip  r'  fecondly,  by  the  affurers  on  the  freight  P 
■ — The  anfwer  given  was  as  follows : — from  the  papers  that  have  been  pro- 
duced, i-elating  to  the  fhip  Seymour,  it  feems  to  be  evident  enough,  that 
the  principal  motive  for  laying  out  fo  much  money  for  repairs,  after  fhe  was 
drove  afhore  by  the  hurricane,  and  reduced  almofl  to  a  wreck,  was,  in  order 

to 


46o  R        E        P        A        I        R. 

lo  fave  the  confiderable  freight  of  the  goods  the  fliip  had  on  hoard,   or  to: 
make  the  fame  up  again  another  way  ;  which  would  have  been  abfolutely  loft„ 
if  the  fhip  had  been  abandoned  or  fold  as  unfit  to  proceed  on  her  voyage  ;l 
as,  therefore,  both  the  infurers  on  the  fhip  and  the  infurers  on  the  freight  reaf) 
the  advantage    of  thofe    repairs,    they  ought  in  juflice  jointly  to  bear  the 
expence  thereof,    and  to  contribute  their  {hares  towards  the  falvagc :   die 
latter  in  particular,  have  great  reafon  to  be  well  fatisfied  with  the  refolution 
taken  of  repairing  the  fliip  : — when  a  perfon  makes  alfurance  upon  the  fj-cight, 
of  a  fhip,  it  is  cuftomary,  and  is  no  more  than  rcafonable,  that  he  then  make 
the  lefs  alfurance  on  the  (hip  itfelf ;    for  although  the  affurance  on  the  hull  is 
in  its  nature  different   from  the  affurance  on  the  freight,    yet  whenever  an 
account  is  made  up  to  prove  or  demand  a  lofs  upon  fuch  affurance,   or  to 
make  a  repartition  of  the  falvage  charges,   the  fame  muff;  be  examined  firft  in 
general,  and  afterwards  looked  over,  and  compared  together  feparately  ;    for 
it  often  happens  that  the  owners  include  the  fitting  out  of  the  fliip,   when 
they  make  affurance  on  the  hull :    and  as  the  fitting  out,   viHualling,    mens' 
rouges,    premium  of  affurance  on  the  fhip,  as  well  as  wear  and  tear,   and 
diminution  of  the  materials  by  time  or  ufe,    muff;  all  be   produced  by  the 
freight,   it  is  to  be  obferved  that  the  fame  ought  not  to  be  charged  in  both 
parts,   nor  to  make  the  affurance,  or  receive  a  lofs  double,  which  may  pro- 
bably have  been  the  cafe  fometimes  : — it  has  alfo  frequently  happened,  when  an 
infurance  has  not  been  made  to  the  full,   and  a  difpute  afterwards  arofe  about 
the  diffribution  of  the  charges  of  falvage,   that  it  has  been  neglefted  to  make 
the  afTured  himfelf  contribute  thereunto  for  that  part,   M'hich  he  had  infured 

too  little  on  the  value  of  the  fhip,   and  the  freight. In  this  cafe,  therefore, 

the  arbitrators  dedufted  (out  of  135  ih  the  amount  given  in  of  the  repairs, 
&c.)  263I.  as  being  laid  out  more  than  was  needful,  or  ought  to  have 
been  expended  ;  and  as  to  the  remainder,  decided,  that  one  of  the  two 
following  directions  ought  to  be  chofen ; — firft,  to  charge  the  infurers  on 
the  fliip  feparately  with  the  coft  of  the  materials  that  were  provided  new,  and 
remain  with  the  fhip ;  but  all  expences  for  workmanffiip.  Sec.  to  be  borne 
z;i  common  by  the  infurers  on  the  fhip,  and  thofe  on  the  freight : — or  fecondly, 
the  things  bought  new,  the  workmanlhip,  &c.  may  be  valued  at  the  rate 
as  if  the  fhip  had  been  repaired  at  Briffol  or  London,  and  then  charge  the 
whole  amount  to  the  infurers  on  the  /hip ;  but,  let  the  infurers  on  the  freight 
bear  the  difference  of  as  much  as  the  things  coft  more  at  Jamaica. — 
1  Mag.  250. 

;j.  Remarks. — It  is  an  undeniable  faft  that,  when  fiiips  have  met  with 
accidents  and  fuftaincd  damages,  which  it  becomes  neceffary  to  repair  at  the 
charge  of  infurers,  great  impofitions  are  frequently  pratiifed  therein,  by 
the  management  of  owners,  mafters,  or  their  agents,  who  have  the  fole 
direftion,  with  regard  to  fuch  repairs,  at  the  place  where  they  are  made ;  it 
would,  therefore,  be  very  proper  that  fome  method  were  ufed  which  might 
ferve  as  a  prevention  of,  or  check  upon,  fuch  unfair  praftices,  and  that 
equal  jijfticc  might  be  done  in  fuch  cafes,   as  well  to  the  infurers  as  the 

owners. — 


REPAIR.  461 

owners.— The  firft  ftep  ufually  taken  on  fuch  occafions  (in  places  where  there 

are  no  perfons  appointed  by  authority  to  take  cognizance  thereof)    is  an 

appHcation  by  the  mafter  of  the  fliip  to  fome  merchant,  who  may  be  a  friend 

of  himfelf,   or  correfpondent  of  the  owners,   and  to  fome  mafters  of  other 

veffels  (mofl  likely  alfo  friends  or  acquaintance  of  himfelf)  to  affift  in  making, 

or  procuring  to  be  made  by  (hip  carpenters  of  his  own  or  the  merchant's 

election,  ^Jarvcy  of  the  damages,  and  an  eftimate  of  the  charges  of  repairing 

them  :— this  furvey  and  eftimate  are  therefore  commonly,  and  naturally  made 

with  partiality,   and  a  great  regard  to  the  intereft  of  the  omners  ;    it  being 

confidered  that  the  infurers  are  the  perfons  who  muft  pay  or  make  good  fuch 

charges :— accordingly  the   faid  furvey  and  eftimate  are   for  the  moft  part 

tranfmitted,     and   communicated    to  the  infurers    for   their  information,   as 

matter  of  form :    they  take  but  little  notice  of  them,   "  doubt  not  but  the 

affureds  or  their  agents  will  do  juftice,   and  a6i  as  they  would  for  themfelves  " 

efpecially  if  the  ftiip  is  at  a  very  diftant  place  : — in  the  mean  while,  the  repairs 

are   going  on;     perhaps   2i  fubfequent   furvey  is    fent   o{  further  damao-es, 

obferved  while  (he  was   ftripping  and  repairing,   that  could  not  be  at  firft 

perceived  ;    and  confequently  an  additional  eftimate  of  further  charges ;   the 

underwriters  ftill  depend  that  juftice  will  be  done  ;  and  finally  comes  the  total 

amount  of  the   repairs,   which  is   found  to   be  double  the   amount  of  the 

eftimates ;     and    has    often    been    equal    to,    nay   fometimes  far  exceeded 

the  true  value  of  the  ftiip,   or  even  a  large  valuation  of  her  in  the  policy. 

And  where's  the  remedy  for  the  infurers,  if  injuftice,  perhaps  great  injuftice 
has  been  done  ?  if,  befides  the  really  damaged  parts  of  her,  the  artificers 
have  taken  away  her  old,  rotten,  and  worn-out  timbers,  iron  work,  rigging,  fails 
&c.  and  fupplied  her  with  new,  and  in  fact  rebuilt  her?  The  bills  are  all 
authenticated,  even  on  oath,  by  the  workmen,  &c.  and  that  the  work  has  been 
done  only  to  repair  the  damages  :  the  owners  have  got  an  entire  new,  or  in 
feveral  refpefts,  a  much  improved  ftiip,  in  place  of  an  old,  originally  ill 
built,  and  perhaps  lately  patched  up  cojin. — They  are  undoubtedly  much 
obliged  to  their  correfpondent :  and  their  mafter  (who  perhaps  is  likewife  a  part 
owner)  is  a  diligent  man  ;  and  they  ought  to  be  employed  again  : — or  it 
may  be,  on  the  contrary,  that  the  mafter  is  a  very  indolent  and  alfo  a  very 
ignorant  man,  with  refpeft  to  all  fuch  matters ;  and  therefore  leaves  the 
whole  to  the  direftion  of  the  agent,   as  this  latter  does  to  the  honefty  of  the 

workmen  to  '•'  do  the  work  thoroughly." There  are  fhip-owners,  or  rather 

ftiip-jobbers,  who  being  alfo  concerned  in  docks,  &c.  fail  not  to  make  a  very 
advantageous  traffick  by  the  means  here  defcribed ;  and  by  uniting  at  one 
and  the  fame  time  in  their  own  perfons,  the  charafter  of  merchant,  freighter, 
ftiip  carpenter,  infurance-broker,  &c. ; — fome  of  this  fort  of  perfons  refident 
near  or  about  the  river  Thames,  have  of  late  years  been  diftinguiflied  by  the 
underwriters  with  the  appellation  of  "  along-Jhore-men." 

4.  See  Prelim.  Difc.  53,  54,  Accident,  Average,  Certificate,  Damage,  Dock, 
Eftimate,  Freight,  General- Aver  age,  Infiifficiency,  Interejl.,  Protejl,  Salvage, 
Ship,  Stranding,  Total  Lojs,  Valuation,  Wear  and  Tear. 

5W  REPRISAL. 


C  462  ] 


REPRISAL. 

1.  AS  the  delay  of  making  war  may  fometimes  be  detrimental  to  indivi- 
-^^^  duals,  who  have  fuffered  by  depredations  from  foreign  potentates,  our 
laws  have  in  fome  meafure  armed  the  fubjetl  with  power  to  impel  the 
prerogative  ;  by  dire6ling  the  minifters  of  the  crown  to  ifTue  letters  of  marque 
and  reprifal  upon  due  demand  :  thfe  prerogative  of  granting  which,  is  nearly 
related  to,  and  plainly  derived  from,  that  other  of  making  war ;  this  being 
indeed  only  an  incomplete  flate  of  hoftilities,  and  generally  ending  in  a  formal 
denunciation  of  war.  Thefe  letters  are  grantable  by  the  law  of  nations, 
whenever  the  fubjefts  of  one  (late  are  oppreffed  and  injured  by  thofe  of 
another ;  and  juftice  is  denied  by  that  ftate  to  which  the  oppreflor  belongs : 
in  this  cafe  letters  of  marque  and  reprifal  (words  in  themfelves  fynonimous 
and  fignifying  a  taking  in  return)  may  be  obtained,  in  order  to  feize  the 
bodies  or  goods  of  the  fubjefts  of  the  offending  ftate,  until  fatisfaftion  be 
made,  wherever  they  happen  to  be  found  :  but  here  the  neceffity  is  obvious 
of  calling  in  the  fovereign  power,  to  determine  when  reprifals  may  be  made ; 
elfe  every  private  fufferer  would  be  a  judge  in  his  own  caufe.  In  purfuance 
of  which  principle,  it  is  with  us  declared  by  the  flatute  4  Hen.  5.  c.  7.  that, 
if  any  fubjefts  of  the  realm  are  oppreffed  in  time  of  truce  by  any  foreigners, 
the  king  will  grant  marque  in  due  form,  to  all  that  feel  themfelves  grieved : 
which  form  is  thus  direfted  to  be  obferved :  the  fufferer  muft  firfl  apply  to  the 
lord  privy-feal,  and  he  fhall  make  out  letters  of  requefl  under  the  privy-feal ; 
and,  if,  after  fuch  requefl  of  fatisfaftion  made,  the  party  required  do  not 
within  convenient  time  make  due  fatisfaftion  or  reflitution  to  the  party 
grieved,  the  lord  chancellor  fhall  make  him  out  letters  of  marque  under  the 
great  feal:  and  by  virtue  of  thefe  he  may  attack  and  feize,  the  property  of 
the  aggreffor  nation,  without  hazard  of  being  condemned  as  a  robber  or 
pirate. — 1  Black.  Comm.  258. 

2.  No  letters  of  marque  fliall  be  granted  on  either  fide,  till  juftice  hath 
been  fnft  demanded  according  to  the  ordinary  courfe  of  law,  &c. : — but  if 
juftice  be  denied  or  delayed,  after  being  publicly  required,  and  no  fatisfaction 
given  within  three  months  after  fuch  demand,  letters  of  reprifal  may  then  be 
granted. — Treaty  with  Holland,  1667. 

3v  When  thips  are  driven  into  port  by  ftorm  or  ftrefs  of  weather,  they 
have  an  exemptioa  fronx  the  law  of  reprifals,  according  to  the  jus  commune, 
though,  by  the  law  of  England,  it  is  otherwife,  unlefs  exprefsly  provided  for 
in  the  writ  or  commilTion ;  -  but,  if  fuch  (hips  fly  from  their  own  coimtry  to 
avoid  confifcation,  or  for  fome  other  fault,  and  are  driven  in  by  ftrefs  of 
weadier,  they  may  in  fuch  cafe,  become  fubjeft  to  be  prize ;  though  it  is 
unlawful  to  make  feizure  in  any  port  for  reprifal?,  but  in  that  prince's  who 
awarded  them,  or  in  his  againft  whom  the  fame  is  iffued;  for  the  ports  of 
other  princes  or  dates  are  facred,  and  the  peace  of  them  are  not  to  be  violated 
or  difturbed,  but  jaiftly  to  be  obferved  and  maintained. — Molloy,  b.  1.  c.  2. 

4.     Case. — 


RESPONDENTIA.  4^3 

4.  Case. — The  king  having  granted  general  letters  of  reprifal  on  the 
Spaniards  for  the  benefit  of  his  fubjefts,  in  confideration  of  the  loITes  they 
fuftained  by  unjufl;  captures  ;  the  commiflTioners  would  not  fuffcr  the  infurers 
to  make  claim  to  part  of  the  prizes,  but  the  owners  only,  although  they  were 
already  fatisfied  for  their  lofs  by  the  infurers  :  who  thereupon  brought  the  pre- 

fent  bill. Lord  chancellor  was  of  opinion,  that  the  plaintiffs  had  the  plaineft 

equity  that  could  be:  the  perfon  originally  fuftaining  the  lofs  was  the 
owner  ;  but  after  fatisfaftion  made  to  him,  the  infurer :  no  doubt,  but  from 
that  time,  as  to  the  goods  themfelves,  if  reflored  in  fpecie,  or  compenfation 
made  lor.  them,  the  alfured  ftands  as  a  irufiee  for  the  infurer,  in  proportion 
for  what  ha  paid ;  although  the  commiffioners  did  tight  in  avoiding  being 
entangled  in  accounts,  and  in  adjufting  the  difference  between  them :  their 
commjffion  was  limited  in  point  of  time  ;  they  fee  who  was  owner ;  nor  was 
it  materi^il  to  them,  to  whom  he  affigned  his  interefl,  as  it  was  in  effe6l  after 
fatisfadion  made. — 1  Vefe)>,  gg. — Randall  v.  Cockran. 

5.     See    Capture,   HoJliliLy,    Lazu  of  Nations,  Letter  of  Marque,  Neutral 
Ship  or  Property,  Privateer,  Prize,  Trujl  and  Trujlee,   War.  •       .    - 


RESPONDENTIA. 

1.  TF  the  loan  is  not  upon  the  veffel,  but  upon  the  goods  and  merchandife, 
-*-  which  muft  neceffarily  be  fold  or  exchanged  in  the  courfe  of  the 
voyage,  then  only  the  borrower,  perfonally,  is  bound  to  anfwer  the  contrati; ; 
who,  therefore,  in  this  cafe  is  laid  to  take  up  money  at  refpondentia. — 
2  Black.  Coram.   458. 

2.  C.\SE. — This  was  a  cafe  referved  at  the  fittibgs  before  Lord  Mansfield, 
at  Guildhall,  after  Mich,  term  1762  : — it  was  an  aftion  upon  a  policy  of 
infurance  bearing  date  the  i6ih  of  December  1760,  made  on  goods  and  mer- 
chandifes  on  board  the  fhip  Denham,  captain  William  Tryon,  "at  and  from 
Bengal  to  any  ports  or  places  whatfoever  in  the  Eaft-Indfes  until  her  fafe  arri- 
val in  London  :"  which  policy  was  underwritten  by  the  defendant  for  200I.  for 
a  premium  of  lol.  per  cent. : — the  plaintiffs  declared  for  a  total  lofs  : — the 
defendant  pleaded  the  general  ifi'ue : — the  caufe  coming  on  to  be  tried  at 
Guildhall,  London,  on  the  ift  of  December  1762,  before  Lord  Mansfield, 
it  appeared  in  evidence,  that  the  defendant  underwrote  the  policy  and 
received  the  premium  as  ftated  in  the  declaration :  that  before  the  under- 
writing of  the  policy,  the  plaintiff  had  lent  to  William  Tryon,  the  mafler  of 
the  fhip,  upon  the  goods  then  loaden  or  to  be  loaden  on  board  the  faid  fhip, 
on  account  of  the  faid  William  Tryon,  the  fum  of  764I.  refpondentia;  for 
which  a  refpondenti  •  bond  was  executed  by  captain  Tryon  and  one  Jofeph 
Buflol  to  the  plaintift  :  that  on  the  31ft  of  March  1760,  the  Denham  M-as  at 
Fort  Marlborough  in  the  Eaft-Indics,  within  the  limits  infured  ;  and  had  then 
and  at  the  time  of  the  lofs  hereafter  mentioned,  divers  goods  and  merchandifes  on 

board 


464  RESPONDENTIA.  f 

board  her,  which  were  the  property  of  the  faid  WilHam  Tryon,  and  of  greater 
value  than  all  the  money  he  had  borrowed  :  diaton  the  31(1  of  March  1760, 
the  faid  Ihip  with  her  lading  on  board  her  was  burnt  at  Fort  Marlborough 
aforcfaid,  and  thereby  all  the  goods  and  merchandifes  aforefaid  of  the  faid 
William  Tryon  were  totally  confumed  and  loft  : — the  jury  found  a  verdift  for 
the  plaintiff,    fubjeft  to  the  opinion  of  the  court,  "  whether,  on  this  evidence, 

the  plaintiff  was  entitled  to  recover  on  this  policy  ? The  counfel  for  the 

plaintiff  infifled,  that  the  lender  of  this  money  had  an  intercft  in  the  goods, 
though  they  were  the  property  of  the  borrower  :  the  lender  is  the  trader  againfl 
the  rifque  of  the  fea  :  refpondentia  is  an  intereft  that  may  be  infured  :  and  it  is 
not  necelfary  X.o  fpccify  in  the  policy,    "  that  it  was  a  refpondentia  intereft  only, 

which  is  infured." The  counfel  for  the  defendant  infifted,  that  die  lender  of 

money  upon  refpondentia  has  no  intereft  at  all  in  tht  goods  that  the  borrower 
either  carries  out  or  may  acquire  in  India:  and  confequently  he  cannot  infure 
them :  the  borrower  had  the  whole  difpofal  of  them  :  he  was  only  bound  to  allow 
for  the  falvage,  if  any  happened  upon  the  lofs  of  them  :  the  whole  of  the  bond 
turns  upon  the  fliip's  returning  in  fafety  :   the  lender  has  nothing  to  do  with 
the  goods :   this  therefore  differs  greatly  from  a  mortgage,   where  the  thing 
mortgaged  is  bound  to  the  payment  of  the  debt ;   and  therefore  a  property  in 
the  thing  mortgaged  is  vefted  in  the  mortgagee,    and   he  may  infure   it : 
whereas  the  lender  on  refpondentia  has  no  fort  of  property  or  intereft,  either 
general  or  fpecial  in  the  goods  :     the  cuftom  of  all  infurances  is  to  mention 
the  thing  infured  precifely ;  and  a  ftrong  reafon  why  it  ought  to  be  afcertained 
is,  becaufe  the  courfe  of  returning  the  premium,  or  part  of  it,  differs  according 
to  the  different  nature  of  the  thing  infured ;   the  underwriter  returns  to  the 
infured  fo  much  of  the  premium  as  there  was,   in  faft,    no  rifque  upon  ;   but 
there  would  be  an  end  of  all  chance  of  that,  if  the  lender  of  money  on  refpon- 
dentia could  infure  it  as  goods;    for  if  the  fliip  came  home  fafe,   he  might 
receive  his  whole  premium  back,   upon  fliewing  that  he  had  no  goods  on 
board ;    and  yet  might  keep  this  his  refpondentia  intereft  in  petto,  to  claim 
upon  it,  in  cafe  the  fhip  fhould  be  (as  it  was  here  in  faft)  loft  :  therefore  proof 
of  a  refpondentia  intereft  only,    is  no  evidence  to  fubjeft  the  infurer  to  the 
payment  of  the  money  thus  pretended  to  be  infured  by  the  lender,    without 
fpecifying  it : — according  to  the  latitude  here  taken,  the  infured  might  make 
his  eleftion  after  the  event ;    and  it  would  lie  quite  open  to  fraud  and  uncer- 
tainty, if  he  fhould  be  left  to  declare  in  future,   what  it  was  that  he  meant  to 
infure,    after   the   event   had   happened :    this  cannot   but  be   introduftive 
of  fraud :    in    refpondentia   infurances  there  is  always  a  claufe    "  that  the 
refpondentia  bond  fliall  of  itfelf  be  a  proof  that  there  is  fuch  an  intereft  on 
board :"   and  the  premium  is  accordingly :    in  cafe  of  a  general-average,   the 
infurer  of  a  refpondentia  intereft  never  contributes  :    the  average  is  always 
contributed  to  by  the  infurers  on  the  goods :    a  refpondentia  intereft  cannot 

be  infured  as  goods. The  court  took  fome  time  to  think  of  this  cafe  :    and 

now  Lord  Mansfield  delivered  their  refolution :  which,  he  faid,  they  had 
very  fully  confidered :  he  owned,  that  at  the  trial,  and  alfo  fince,  upon  the 
argument  here,  he  did  lean  to  fupport  this  infurance ;    and  his  reafon  for  fo 

doing 


RESPONDENTIA.  jg^ 

doing  was,  that  he  was  fatisfied  of  it's  being  a  fair  infurance  ;  and  that  the 
doubt  which  had  arifen  upon  it  was  only  occafioned  by  a  flip  in  omitting  to 
fpccify  (as  it  was  intended  to  have  been  done)  "  that  this  was  a  refpondentia 
interefl: :" — the  ground  of  fupporting  this  infurance,  if  it  could  have  been 
fupported,  was  a  claufe  of  the  acl  of  19  Geo.  2.  c.  37.  viz.  the  fifth  feftion  : 
[which  fee,  under  title,  Bottomry,  p.  50.]  now  this  aft,  to  the  purpofe  of 
infurance,  confiders  the  borrower  as  having  a  right  to  infure  only  for  the 
J'urplus  value,  over  and  above  the  money  he  has  borrowed  on  bottomree  or 
at  refpondentia  :  and  lenders  at  refpondentia  or  on  bottomree  may,  to  many 
purpofes,  be  faid  to  have  a  lien :  yet  we  are  all  very  well  fatisfied,  after  a 
more  particular  confideration,  "  that  this  acl  of  parliament  never  meant  or 
intended  to  make  any  alteration  in  the  manner  of  infurances :"  it's  view  was 
to  prevent  gaming  or  xoagering  policies,  where  the  infured  had  no  interefl  at 
all :  and  if  the  lender  of  money  at  refpondentia  was  to  be  at  liberty  to  infure 
for  more  than  his  whole  intereft,  it  would  be  a  gaming  policy  ;  for  it  is 
obvious,  that  if  he  could  infure  all  the  goods,  and  infure  his  refpondentia 
intereft  befides,  this  would  amount  to  an  infurance  beyond  his  whole  intereft  : 
— the  aft  confiders  the  form  of  the  policies  juft  as  they  flood  before  the 
making  of  it ;  and  provides,  "  that  on  all  aftions  brought  on  policies  of  aflii- 
rance  ;  the  plaintiff  or  his  attorney  or  agent,  fliall,  within  fifteen  days  after 
he  fhall  be  required  by  the  defendant  or  his  attorney  or  agent,  declare  in 
writing  what  fum  or  fums  he  hath  affured  or  caufed  to  be  aflured  in  the 
whole  ;  and  what  fum  he  hath  borrowed  at  refpondentia  or  bottomree  for 
the  voyage  or  any  part  of  the  voyage  in  queftion,  in  fuch  fuit  or  aftion : ' 
and  in  defcribing  refpondentia  intereit,  it  gives  the  lender  alone  a  right  to 
make  infurance  on  the  money  lent :  fo  that  this  aft  left  it  upon  the  praftice  : 
— his  lordfliip  faid,  he  had  looked  into  the  praftice ;  and  he  found  that 
bottomree  and  refpondentia  are  a  particular  fpccies  of  infurance  in  themfelves, 
and  have  taken  a  particular  denomination  :  and  he  could  not  find  even  a  diclim, 
in  any  writer,  foreign  or  domeftick,  "  that  the  refpondentia  creditor  may  infure 
upon  the  goods,  as  goods ;"  and  in  this  very  cafe,  the  refpondentia  intereft 
was  intended  to  have  been  fpecified  ;  but  was  omitted  to  be  fo,  by  mifakc : 
he  declared,  that  he  found,  by  talking*  with  intelligent  perfons  very  converfant 
in  the  knowledge  and  praftice  of  infurances,  that  they  always  do  mention 
refpondentia  intereft  whenever  they  mean  to  infure  it : — this  their  prefent 
determination  would  not,  he  faid,  interfere  with  that  of  Godin  &  al :  v. 
London- Affurance-Comp any,  with  regard  to  a  lien  on  the  goods ;  becaufe  this 
kind  of  intereft  has  taken  a  particular  denomination :  it  might  be  greatly 
inconvenient,  to  introduce  a  praftice  contrary  to  general  ufage  ;  and  there 
may  be  fome  opening  \.o  fraud,  if  it  be  not  fpecified  :  he  declared  the  ground 
of  the  prefent  rcfolution  to  be  this— "  that  it  is  eftabliflied  now,  as  the  law  and 
praftice  of  merchants,  that  refpondentia  and  bottomree  muft  be  mentioned 
and  fpecified  in  the  policy  of  infurance  :"    but  he  declared,   at  the  fame  time, 

*  StE  Prdim.  Difc.  p.   \%,  Barratry  p.  ^o.  Law,  &c.  p.  319. 

5  X  that 


466  RESPONDENTIA. 

that  they  did  not  mean  to  determine  generally,  "  that  no  fpecial  interefl:  in 
goods  may  be  given  in  evidence,  in  other  cafes  than  thofe  of  refpondentia 
and  bottomree,  if  the  circumftances  of  the  cafe  (hall  admit  of  it." — Plaintiff 
to  be  nonfuited. — 3  Burr.  1394.  Trin.  Geo.  3. — Glover  v.  Black. 

3.  On  goods  loaded,  the  money  borrowed  may  not  exceed  the  value  that 
tliey  fliall  have  in  the  port  where  the  rifque  fliall  begin  to  run ;  on  penalty 
that  if  the  contrary  be  proved,  the  borrower  fliall  pay  the  principal  fums,  and 

their  premiums,  although  the  lofs  of  the  faid  goods  Ihould  happen. If  the 

goods  upon  which  money  fliall  have  been  lent  at  bottomry,  fuffer  damage 
from  their  own  peculiar  bad  quality,  or  by  negligence,  and  fault  of  the 
mailers,  proprietors,  or  merchants-fliippers,  on  the  (hip's  arrival  at  the  port 
flie  is  bound  to,  it  (hall  not  be  for  the  account  of  the  lender  of  the  money  ; 
but  he  that  received  it  ought  neverthelefs  to  pay  him  the  capital  entirely,  and 
it's  premium  ;  unlefs  it  has  been  agreed  in  the  writing  made  about  it,  that  he 
Ihould  likewife  run  the  rifque  of  damages,  or  averages,  of  the  quality  afore- 

faid. The  Ihipper  that  fhall   have   taken  money  at  bottomry  upon   goods, 

lliall  be  obliged,  in  cafe  of  their  lofs,  to  juftify  that  he  had  them  really  loaden 
for  his  account  to  the  full  amount  of  the  money  that  he  took  up,  that  he  may 
remain  free  from  the  performance  of  the  agreement. — Ordin.  of  Bilb. 

4.  •  The  producing  of  the  refpondentia  bond  is  not  fufhcient  to  recover  a 
lofs,    on  the  policy  of  infurance,    without  proof  of  the  value  of  the  goods 

a6lually  (hipped : ^for  if  the  goods  were  not  fiiipped,   there  would  be  no 

rifque  for  the  lender;  to  whom  the  borrower  would,  in  fuch  cafe,  ftill  be 
anfwerable,   though  the  fliip  (hould  be  loft. — 2  Valins  Comm.  139, 

5.  There  is  a  difference  in  the  forms,  or  terms  of  refpondentia  as  well  as 

bottomry  bonds,   in  ufe  at  different   places : the    Spanifi   forms    are   in 

general  well  adapted  to  the  nature  of  thefe  tranfaftions,  as  it  is  in  Spain  that 

they  are    more    frequent   than   elfewhere,     and   better   underftood. The 

general  form  of  the  refpondentia  bond,  in  ufe  at  Cadiz,  is  fimilar  to  that  of 
the  bottomry  bond  (inferted  p.  58)  except  in  the  claufes  which  fpecifically 
relate  to  the  goods,  inftead  of  the  (hip. 

6.     Form  of  a  Refpondentia  Bond,   at  Bilboa. 

T>  E  it  known,  that  I  inhabitant  of  acknowledge  that  I 

-*-'  ov/c,  and  oblige  myfelf  to  pay  to  inhabitant  of. 

and  to  whomfoever  fhall  have  his  power  or  order  for  another  fuch  fum 

that  to  do  me  a  good  office  he  has  lent,  given,  and  delivered  to  me  in  money  for  the 
purchafe  of  goods;  or  them  in  fpecie  that  I  have  bought  with  it,  including  in  the  faid  fum 
the  premiums  of  the  rifque  that  fliall  go  declared  :  and  with  the  faid  fum,  commodities, 
and  goods,  I  own  myfelf  contented,  and  to  have  received  to  my  fatisfaftion,  and  upon 
their  receipt,  for  not  being  at  prefcnt,  I  renounce  the  exception  of  the  money,  laws  of  the 
delivery,  it's  proof,  deceit,  and  the  reft  of  this  cafe,  as  is  contained  iathem,  of  which  I 
equally  grant  him  a  receipt  in  forrh  :    tlie  which  faid  fum  muft  go,    and  goes  running  the 

rifque 


RESTITUTION.  467 

rifque  for  account  of  the  faid  to  in  the  fhip  named 

it's  captain  which  is  riding  at  anchot-  in  upon  the  faid  goods, 

which  are,  or  fhall  be  put  aboard  of  her;  and  they  are  fo  many  pieces,  boxes  [or  what 
tliere  (hall  be]  with  marks  or  numbers  [which  arc  put  in  the  margin]  which 

fhall  go  embarked  for  my  account  in  the  faid. fhip:  and  I  warrant  them  to  be  worth  more 
than  the  aforcfaid  Turn  of  this  writing ;  the  faid  being  equally  a  fliarer,  and 

intercfted  in  the  affignation  of  them,  to  run  the  rifques  in  the  faid  fliip ;  the  which  (hall  be, 
and  they  fhall  be  underftcjod,  of  fea,  wind,  land,  fire,  friends,  enemies,  and  other  unfor- 
tunate accidents  thought  of,  and  unthought  of,  which  (God  forbid)  may  happen  to  faid 
fhip,  by  which  the  faid  goods,  and  effects  may  be  lofl;  and  the  lofs  being  total,  1,  and  my 
eftate,  are  to  remain  free  from  the  payment  and  fatisfaftiun  of  the  fum  of  this  writing,  and 
there  fliall  only  remain  to  the  faid  tlie  recourfe,  if  the  faid 

fliip  fhall  Orike  in  a  part  where  they  fliall  be  faved,  or  fomething  of  them,  to  inherit 
what  fhall  be  fo  faved,  for  the  fum  of  this  wiiting,  and  I  for  what  they  fliall  be  worth 
more;  both  parties  remaining  fliarers,  and  partners,  to  the  intent,  that  abating  the  cofts  and 
chaj-ges,  what  fliall  remain  net,  be  parted,  and  proportioned  in  lofs  and  gain,  according 
to  a  company's  account :  and  each  party  in  what  he  hath  for  him,  mull  reft,  and  abide  by  the 
attefted  relation,  which  the  perfon  who  has  run  in  the  affair  fhall  give,  without  other  proof; 
and  the  faid  rifque  is  to  commence  from  the  moment,  and  hour,  that  the  faid  fliip  fliall  weigh, 
and  go  out  of  this  harbour  to  profccutc  her  voyage,  and  all  the  run  of  it;  entering,  and 
failing  from,  any  ports,  and  bars,  with,  or  without  cauf«,  imtil  flie  really  and  truly  fails, 
and  enters  into  that  has  been  mentioned  where  fhe  is  bound  to,    and 

fhall  have  caft  anchor,  and  twenty-four  natural  hours  have  paffed ;  which  being  accom- 
plifhed,  the  rifque  for  account  of  the  faid  .fhall  ^oXsWy  Jini/li;  to  whom, 

or  to  him,  or  them  that  fhall  have  his  power,  and  order,  I  will  fairly  pay  the  faid 
royals,  in  good  common  and  current  money,  within  days,  which  begin  to 

run  from  that,  in  which  the  rifle  fliall  end  and  hnifli ;  for  the  which,  and  the  coft;  of  their 
recovery,  he  may  ferve  me  with  an  execution  in  virtue  of  this  writing,  and  the  oath,  or 
fimple  declaration  of  whomfoever  fhall  prefcnt  it,  and  fliall  be  a  legitimate  party,  in  whom 
I  leave  fufpended  the  proof,  and  examination  of  the  performance  of  the  faid  rifque, 
term  of  payment,  without  having  made  it,  and  all  befides,  that  it  did  require,  and  ought 
to  be  fettled,  according  to  the  lad  ordinance  of  the  univerfity  and  houfe  de  contratacion 
of  this  faid  town,  conlirmed  by  his  majefliy  ;  that  this  writing  may  be  and 

bring  a  prepared  execution,  without  other  proof,  from  which  I  difcharge  him.  And  to  the 
firmnefs  of  the  whole,  I  oblige  my  perfon,  and  goods  that  I  pofl'efs  and  may  acquire,  and 
give  power  to  the  royal  judices,  of  whatfoever  part  they  be,  and  efpecially  to  thofc  where 
this  writing  fliall  be  prefented,  and  it's  performance  demanded;  to  whofe  authority  and 
jurifdiclion  I  oblige  and  fubmit  myfelf,  renouncing  that  which  I  at  prefent  have,  and  what 
others  I  may  gain ;  and  the  law,  fi  convenerit,  &c.  [concluding  as  in  the  aforementioned 
bottomry  bond,  at  Cadiz,  p.  58]. 

7.  For  the  form  of  a  refpondentia  bond,    ufed  at  London,   and  feveral 
other  matters  concerning  refpondentia,  fee  Bottomry. 

8.  See  Bankrupt,    Double -Injur  ance.   Inter  ejl,   Mijlake,    Proof,    Rifque, 
Vfnge,  Wager. 

RESTITUTION. 

Ske  Appeal,   Claim,   Document,   Prize,   Property,  Reclaim. 

RESTRAINT. 


L   468   ] 
Pv     E     S     T     R     A     I     N     T. 

1.   XT  THERE  a  policy  of  infurance   is  againft  reftraint  of  princes,   that 
'   '      extends    not   where   the    infurcd   navigate    againll    the   laws    of 
countries  ;    or  where  there   fliall  be  a  feizure  for  not  paying  cullom,  or  the 
like. — Per  Hutchins,  lord  commiffioner. — 2  Inn.  176. 

2.  All  the  damages,  which  happen  to  fliips  or  goods,  by  means  of  any 
arrefts  or  rellraints,  and  which  the  affurer  is  to  bear,  are  to  be  underftood 
of  thofe  cafes,  when  the  arrefl  is  laid  by  the  fovereign  authority  of  kings, 
princes,  or  republics  :  but  by  no  means,  when  private  perfons,  for  any 
particular  demand  they  may  have  upon  the  fhippers,  owners,  or  the  fhip, 
Ihall  caufe  the  (hip  or  goods  to  be  arrefled  or  molefled  by  the  magiftrate ; 
in  which  cafe,  the  affurer  is  not  anfwerable  fo  far  as  relates  to  thofe  that 
gave  occafion  for  the  arrefl:  but  otherwife,  and  in  cafe  there  was  no 
foundation  or  lawful  caufe  for  it,  then  the  affurer  remains  liable  to  make 
good  the  difadvantage  and  lofs  occafioned  thereby  to  the  fuffering  party  : 
and  fo  likewife,  all  the  refl  of  the  owners  and  fhippers  concerned  in  a  Ihip 
thus  arrefled,  but  for  whofe  fake  the  arrefl  was  not  laid,  fliall  ahvays  and 
in  all  cafes  remain  entitled  to  their  demands  upon  the  affurers  for  the  lofs 
they  fuffered  thereby,  whether  the  arrefl  was  well  grounded  or  not. — 
Or  dm.  of  Hamb. 

3.  An  infured  fhip  being  afterwards  fequeflrated  on  a  particular  a6lion 
of  debt  againfl  either  the  owner  or  freighter,  the  infurer  is  under  no  manner 
of  obligation  to  make  good  any  loffes  or  charges  refulting  thereby  to  fliip 
or  goods. — Or  din.  of  Stockh. 

4.  A  SHIP  lying  in  this  country,  and  being  reflrained  by  authority  from 
performing  the  intended  voyage,  as  well  the  freighters  on  one  part,  as  the 
owners  and  maflers  on  the  other  part,  fhall  be  difcharged   from  each  other. 

When  a  fhip  lying  in  this  country  is   freighted  to  take  in  it's   cargo  in 

foreign  parts,  and  is  prevented  from  doing  of  it  by  high  authority,  fo  that 
it  mufl  return  empty,  the  freighters  fhall  neverthelefs  be  obliged  to  pay  the 

full   freight. A  fliip  that  lies  in  foreign  parts,    and  is  freighted  to  take 

in  her  loading  either  at  the  fame  or  fome  other  place  abroad,  and  being 
obflru6ted  therein  by  higher  powers,  the  freighters   fhall  be  obliged  to  pay 

half  the  hire  or  freight. But  if  the  reflraint  be  only  in  refpeft  to  the 

goods  that  were  ordered,  or  the  place  they  were  bound  to,  and  that  the 
maflcr  was  at  liberty  to  take  other  goods  on  board,  or  to  carry  the  goods 
to  any  other  place,  having  luthcient  authority  fo  to  do,  and  that  confequently 
the  owners  or  maflers  fuller  no  lofs  thereby,  or  at  Icaft  lefs  lofs  than  half 
the  freight  amounts  to,  it  fhall  then  be  left  to  arbitration,  how  much  the 
freighters  are  obliged  to  pay  on  that  account. — Ordin.  of  Rett. 

r>.    In 


RETURN.  4C9 

5.  In  cafe  an  inrurcd  fhip  or  cargo  be  arrcfted  by  any  foreign  power, 
or  an  embargo  be  laid  on  thera,  or  the  mafter  be  compelled  to  fell  them' 
and  they  are  thus  hindered  from  profecuting  the  voyage,  or  rendered 
unfit  for  fea;  the  party  infured  (hall,  if  the  retardment  happen  in  Europe, 
ftay  half  a  year  from  the  time  of  receiving  fuch  advice,  and  a  whole  year 
if  in  any  other  part  of  the  world,  before  he  relinquiflies  or  gives  up  to 
the  mfurer  the  things  infured,  and  demands  payment:  after  notice  given 
of  the  transfer,  the  infurer,  whether  there  be  hopes  of  recovering  the  goods 
detained,  or  not,  (hall  make  the  payment  within  four  weeks  ;  and  the  party 
infured  Ihall,  at  his  defire,  be  obliged  to  give  fufficient  kcmiiy.—Ordin. 
of  Koningjb. 

6.  If,  during  the  voyage,  the  fliip  be  ftopt  by  reftraint  of  princes,  neither 
freight  nor  lofs  ot  time,  if  freighted  by  the  month,  nor  augmentation  of 
freight,  if  hired  by  the  run  or  voyage,  (hall  be  demanded  ;  but  the  victualling 
and  hire  of  the  feamen,  during  the  time  of  detention,  fhall  be  reputed  as  an 
average. — Ordin.  of  France. 

7.  In  cafe  of  detention  by  foreign  powers,  who  in  war  time  feize  fliips 
at  fea,  and  carry  them  into  their  ports  to  fearch  for  an  enemy's  property  ; 
when  the  continued  employment  of  the  feamen  is  with  the  fole  view  of 
being  enabled  to  profecute  the  voyage  immediately  on  the  (hip's  being 
cleared ;  the  failors'  wages  and  viftualling  are  allowed  to  be  general  average 
as  well  in  London  as  elfewhere. — 1  Mag.  6j. 


b^J 


8.     See  Abandonment,  Detention,    Eonbargo,   General-Average,   Illegality, 
Prohibited  Goods,   Seizure,  Wages,  War. 

R         E         T         U         R         N.  . 

1.  TT  is  an  univerfal  cuftom,  and  has  been  fo  time  immemorial,  that  in 
■*-  cafe  too  much  is  infured,  or  infurances  are  made  at  divers  places 
without  fraud,  the  firjt  (hall  (land  good,  and  the  lafl  infurers  fhall  return  the 
premium,  keeping  only  one  half  per  cent,  for  their  trouble  of  keeping  an 
account  of  it. — Stypmannus,  ad  jus  marit.  par.  4.  c.  7.  n.  508. — Kuricke, 
diatriba  de  affec.  fol.  834.  n.  5. — Loccenius,  dejur.  marit.  I.  2.  c.  5.  n.  8. — 
Stracca,  de  ajfec.  gl.  3.  n.  3,  6?  Jcq. — Ordin.  of  Antxoerp,  France,  &c. — 
2  Valins  Comm.  73. 

2.  It  often  happens  that  goods  are  infured  to  come  in  certain  fliips 
expe£led  from  abroad,  but  do  not  come  by  them  ;  and  as  in  this  cafe  no 
rifque  is  run,  the  infurers  are  obliged  to  return  the  premiums.  Sometimes 
fliips  that  have  begun  to  load  change  their  voyage,  and  unload  again  what 
they  had  aboard :  under  which  circumflances  the  infurers  are  entitled  to 
fomething  more  than  half  per  cent,  for  the  time  the  rifque  continued  ;  though 
whilll  the  fliip   was  in  port  it  could  be  but  very  fmall. — 1  Mag.  90. 

5  Y  3.     Lord 


470 


RETURN. 


3.  Lord  Chancellor  faid,  it  is  laid  down  that  if  tlie  fliip  was  never 
brought  within  the  terms  of  the  infurance,  fo  that  the  infurer  never  runs 
^ny  rifque,    the  premium  mufl  be  returned  in  an  aftion  by  die  allured. 

—1  Vcjcy,  317. 

4.  When  a  return  of  premium  is  demanded,  it  Ihould  be  done  as  foon 
as  polTible,  to  remove  all  fufpicion  from  the  infurers,  of  an  intention  to  cheat 
them  in  cafe  of  damage;  and  if  an  infurance  is  made  on  a  fhip  coming 
from  a  diftant  port,  in  the  expeftation  of  having  fome  goods  by  her,  which 
on  her  arrival,  is  found  to  be  otherwife,  the  infured  fhould  fliew  the 
underwriters,  when  he  demands  the  return,  the  letters  he  may  have  received, 
with  the  advice  that  his  correfpondents  could  not  fend  him  any  thing  by  that 
occafion ;  or  at  leaft  a  declaration  from  the  captain,  attefting,  that  he 
brought  nothing  for  the  infured ;  for  without  this,  he  will  not  be  unlike 
thofe  people,  who  finding  their  merchandife  fafe  arrived,  are  fo  difhoneft, 
as  to  affirm  they  had  nothing  aboard,  in  order  to  procure  a  return.— 
Ricard's  Negoce  d'Ainft. 

5.  Case. — This  was  a  fpecial  cafe  referved  at  a  trial  at  nifi  prius  before  Lord 
Mansfield,  in  London,  upon  an  aftion  brought  againft  the  infurer,  for  a  return 
of  part  of  the  premium  : — it  was  an  infurance  upon  a  fliip,  at  five  guineas  per 
cent,  at  and  from  London  to  Halifax  in  Nova-Scotia,  "  warranted  to  depart 
with  convoy  from  Portfmouth  for  the  voyage,  that  is  to  fay,  the  Halifax  or 
Louilburgh  convoy  :" — before  the  fliip  arrived  at  Portfmouth,  the  convoy  was 
gone  ;  notice  of  this  was  immediately  given  by  the  infured  to  the  underwriter ; 
and  at  the  fame  time,  he  was  alfo  defired  either  to  make  the  long  infurance,  or 
to  return  part  of  the  premium ; — the  jury  find  that  the  ufual  fettled  premium 
from  London  to  Portfmouth  is  one  and  one  half  per  cent. ;  and  that  it  is 
ufual  for  the  underwriters,  in  fuch  like  cafes,  to  return  part  of  the  premium ; 
but  the  quantum  is  uncertain  (and  the  quantum  muft  in  it's  nature  be  uncer- 
tain ;  becaufe  it  depends  upon  uncertain  circumftances) : — it  is  ftated  that  the 
plaintiff  made  to  the  defendant  an  offer  of  allowing  him  to  retain  one  and 
one  half  per  cent,  for  the  rifque  he  had  run  on  fuch  part  of  the  voyage  as 
was  performed  under  the  policy,  viz.  from  London  to  Portfmouth; — — 
Lord  Mansfield  having  firft  flated  the  cafe,  faid, — I  had  not  at  the  trial, 
nor  have  now,  the  leafl  doubt  about  this  queflion,  myfelf :  thefe  contra6ls 
are  to  be  taken  with  the  greateft  latitude :  the  ftri6l  letter  of  the  contra6l  is 
not  to  be  fo  much  regarded,  as  the  objeft  and  intention  of  it :  equity  implies 
a  condition  "  that  the  infurer  fliall  not  receive  the  price  of  running  a  rifque^ 
if  he  runs  none:"  this  is  a  contraft  without  any  conjideration,  as  to  the  voyage 
from  Portfmouth  to  Halifax ;  for  he  intended  to  infure  that  part  of  the 
voyage  as  well  as  the  former  part  of  it ;  and  has  not ;  confequently,  the 
infured  received  no  confideration  for  this  proportion  of  his  premium  :  and 
then  this  cafe  is  within  the  general  principle  of  aftions  for  monies  had  and 
received  to  the  plaintiff's  ufe. — I  do  not  go  upon  the  lifage  ;  for  the  ufage  found 
is  only  "  that,  in  like  cafes,  it  is  ufual  to  return  a  part  of  the  premium,  without 

afcertaining 


Return.  471. 

afcertalning  what  part :"  if  the  rifque  is  not  run,  though  it  is  by  the  negleft 
or  even  the  fault  of  the  party  infuring,  yet  the  inlurer  (hall  not  retain  the 
premium  : — it  has  been  objefted,  "  that  the  voyage  being  begun,  and  part  of 
the  rifque  being  already  run,  the  premium  cannot  be  apportioned :"  but  I  can 
fee  no  force  in  this  objeftion :  this  is  not  a  contract  fo  entire,  that  there  can  be 
no  apportionment :  for  there  are  two  parts  in  this  contraft  ;  and  the  premium 
may  be  divided  into  two  diftinft  parts,  relative,  as  it  were,  to  two  voyages :  the 
praftice  (hews,  that  it  has  been  ufual,  in  fuch  like  cafes,  to  return  a  part 
of  the  premium  ;  though  the  quantum  be  not  afcertained :  and  indeed  the 
quantum  muft  vary,  as  circumflances  vary  ;  fo  that  it  never  can  have  been 
fixed  with  any  precife  exaftnefs  :  but  though  the  quantum  has  not  been  afcer- 
tained, yet  the  principle  is  agreeable  to  the  general  fenfe  of  mankind. Mr. 

Juftice  Dennifon  was  of  the  fame  opinion :  it  is  mod  equitable,  that  the  defen- 
dant (hould  only  retain  the  premium  for  fuch  part  of  the  voyage  as  he  has  run 
the  rifque  of:  the  infured  has  a  right  to  have  the  other  part  reftored  to  him  ; 
and  this  is  agreeable  to  the  general  principle  of  aclions  for  money  had  and 
received  to  the  plaintiff's  ufe  :  where  the  defendant  had  no  right  to  retain  it,  he 

muft  refund  it. Mr.  Juftice    Fofter  declared  himfelf  to  be  of  the  fame 

opinion  :  there  is  no  conlideration  for  the  remainder  of  the  premium  ;  for  the 
voyage  from  Portfmouth  to  Halifax,  wherein  no  rifque  was  run  by  the  infurer, 
who  only  infured  the  voyage  with  convoy  ;  therefore  he  has  no  right  to  retain 

the  premium  for  this. Mr.  Juftice  Wilmot  declared  his  concurrence  moft 

clearly  and  ftrongly ;  he  faid,  thefe  kinds  of  contracts  are  by  the  writers  on 
this  head,  called  contraclus  innoviinati ;    and  the   rule  which  they  lay  down 
concerning  them  is,    "that  they  are   to  be   determined  y^am(5?M5?i  bonum  et 
eguuni:"  the  jury  have  here  found  the  ufage  "  to  return  part  of  the  premium  in 
fuch  cafes  ;"  which  is  a  ftrong  proof  of  the  equity  of  the  thing:  and  nothing 
can  be  more  juft  and  reafonable  :    if  the  rifque  was  once  begun,  the  infured 
fliall  not  deviate  or  return  back,  and  then  fay,    "  I  will  go  no  further  under 
this  contraft,  but  will  have  my  premium  returned:"    but  upon  this  policy, 
there  are  two  diftinft  points  of  time,  in  effeft  two  voyages,   which  were  clearly 
in  the  contemplation  of  the  parties ;    and  only  one  of  the  two  voyages  was 
made  ;  the  other  not  at  all  entered  upon  ;  it  was  a  conditional  contract ;    and 
the  fecond  voyage  was  not  begun  :   therefore  the  premium  muft  be  returned ; 
for  upon  this  fecond  part  of  the  voyage,  the  rifque  never  took  place  at  all : — 
this  is  agreeable  to  what  the  writers  on  this  fubjeft  lay  down  ;  and  is  the  right 
and  juftice  of  the  cafe. — Per  cur.  unanimoufly,  let  the  poftea  be  delivered  to 
the  plaintiff. — 3  Burr.  1237.  Mich.   2  Geo.  3. — Steven/on  v.  Syioru. 

6.  Case. — This  was  an  aftion,  upon  a  policy  of  infurance  on  a  fliip, 
with  a  count  of  a  general  indebitatus  aft'umpfit  for  money  had  and  received  to 
the  plaintiff's  ufe  ;  and  damages  were  laid  at  98I. : — the  trial  was  had  under 
a  decree  of  the  court  of  chancery,  where  the  now  defendant,  the  infurer, 
being  there  complainant,  had  o^ered  to  pay  back  the  premium,  which  was  lol. : 
no  money  was,  in  the  prefent  cafe,  paid  into  court ;  though  the  ufual  courfe  in 
thefe  cafes  is  for  the  defendant,  the  infurer,  to  bring  the  premium  into  court. — 

The 


472 


RETURN. 


The  jury  found  a  verdicl  for  the  plaintiff,  for  the  ten  pounds  premium,  on  the 
count  for  money  had  and  received  to  his  ufe  ;  although  they  were  of  opinion 
aeainft  the  pohcy,  upon  the  loot  of  y^r^Mfi^;  and  found  againfl  it,  as  being 
fraudulent :  in  fact,  the  firfl  underwriter  was  only  a  decoy-duclc,  to  induce 
other  perfons  to  underwrite  the  policy ;  and  it  had  been  previouOy  agreed 
between  the  infured  and  him,  "  that  he  Ihould  not  be  bound  by  his  figning 
the  policy  ;"  which  this  court  confidered  as  a  fraud,  and  therefore  that  the 
jury  had  given  a  right  verdi6t  in  finding  the  policy  fraudulent. — By  concur- 
rence of  Lord  Mansfield  (before  whom  it  was  tried)  and  of  the  counfel 
on  both  fides,  it  was  agreed  to  bring  this  queftion  before  the  court,  "  Whether, 
upon  a  policy  of  infurance  being  found  fraudulent,  the  premium  fhould  be 
returned  to  the  plaintiff,  the  infured,  or  retained  by  the  defendant  the  infurer?" 
— the  method  taken  was,  by  the  defendant's  counfel  moving  for  a  rule  to 
fliew  caufe  why  the  judgment  fliould  not  be  entered  up  for  the  defendant ; 

and  the  court's  making  a  rule  to  fliew  caufe. Mr.  Harvey,  for  the  plaintiff, 

now  ftiewed  caufe  :  he  argued  that  this  contraft  was  to  be  looked  upon  as 
void  ab  initio ;  therefore  no  rifque  was  run  by  the  defendant ;  and,  confe- 
quently,  he  had  no  right  to  retain  the  premium  :  there  is  no  cafe  at  common 
law  on  this  head,  that  has  been  judicially  determined  ;  but  in  cafes  like  this, 
equity  and  common  law  courts  have  concurrent  jurifdiftion,  and  muft 
determine  alike,  upon  like  circumftances  :  and  the  two  cafes  in  equity  of* 
Wittingham  v.  Thornborough,  and  +  Da  Cojla  v.  Scanderct,  are  nearly  in  point. 

Mr.  Morton  and  Mr.  Yates,    for  the  defendant,    mentioned  a  cafe  of 

Rucker  v.  Hollingbury  before  the  mafl;er  of  the  rolls ;    who  was  of  opinion 

contrary  to  Mr.  Harvey's  two  cafes. But  Lord  Mansfield  faid  that  there 

muff  be  fome  miftake,  in  reciting  this  lafl  cafe  before  the  mailer  of  the  rolls  : 
for  the  praftice  of  the  court  of  chancery  is  certainly  agreeable  to  Mr.  Harvey's 
cafes :  but  what  he  wanted  to  know  was,  "  Whether  there  was  any  common 
law  determination  to  the  fame  effeft  ?"  [It  did  not  appear  that  there  was]. — 
Whereupon  Lord  Mansfield  faid,  it  was  plain  what  mufi:  be  done  in  this  cafe  : 
for,  he  looked  upon  the  offer  made  by  the  complainant's  bill  in  equity,  to  be 
the  fame  thing  as  if  the  money  had  been  aftually  brought  into  court,  in  the 
prefent  cafe  : — therefore  a  rule  was  made,  that  the  verdift  found  for  the  plaintiff 
be  vacated;  and  that  a  verdift  be  entered  for  the  defendant. — 3  Burr.  1361. 
Mich.  3  Geo.  3. — Wilfon  v.  Ducket. 

7.  Case. — A  fhip  was  infured  in  Auguft  1776,  for  twelve  months, 
at  9I.  per  cent,  "warranted  free  of  captures  and  feizures  and  the  con- 
fequences  of  any  attempt  thereof:"  flie  was  taken  by  an  American 
privateer  at  the  end  of  two  months  : — the  affured  demanded  a  return  of 
premium  for  ten  months ;  alleging  that  the  underwriters  ran  no  rifque  but 
for  the  two  months ;  and  that  it  ought  to  be  confidered  in  the  fame  light  as 

*  V.  Preced.  in  Chan.  20. — Where  a  fraudulent  policy  was  decreed  to  be  delivered  up ;    and  the 
premium  to  be  repaid;   the  plaintiffs  deducing  thereout  their  cofls. See  Lives. 

tV.   2   Pert.  IVms.    170. — The   like   decree:     policy   to  be   delivered  up,    with   cofls;     but   the 
premium  to  be  paid  back,  and  allowed  out  of  the  cofls. — —See  Concealment. 

when 


RETURN.  473 

when  a  (hip  is  infured  to  go  to  two  places,    and  the  rifque  is  divided  by- 
proceeding  no  further  than  the  Jirjl  place  ;  in  which  inftance  a  proportionable 

part  of  the  premium  is  always  returned. For  the  defendant,   the  infurer, 

it  was  argued,  that  an  infurance  for  twelve  months,  or  any  certain  time,  at  a 
certain  fixed  premium  for  the  xohole  term,  is  to  be  confidered  as  one  entire 
indivi/ibie  rifque;  for  which,  when  once  commenced,  the  whole  premium  may 
be  retained,  without  any  return,  or  apportionment  thereof,  on  account  of 
the  rifque  being  difcontinued,  or  fhortened  : — it  would  be  otherwife,  if  the 
premium  is  at  a  certain  rate  per  month :  for  in  this  cafe,  the  premium  is  due 
only  for  fo  many  months,  as  the  rifque  continues.— Verdi6l  for  the  defendant. 
— At  Guildhall,  before  Lord  Mansfield,  Mich.  1777. 

8.  If  a  fliip  be  warranted  in  the  policy  to  depart  on  or  before  a  certain 
day,  and  does  not  depart  till  after  the  day  fpecified ;  a  rcafonable  portion 
of  the  premium  may  be  retained,  according  to  the  rifque  which  the  under- 
writer may  have  run,  during  the  time  previous  to  the  faid  fpecified  day ;  and 
the  reft  of  the  premium  ought  to  be  returned. — See  f.  2,  5. 

g.  He  that  fhall  have  infurance  on  goods  from  Spain  to  the  Indies,  and 
for  fome  reafon  has  not  loaded  them,  or  only  part,  on  the  fhip  infured; 
in  order  to  obtain  a  return  of  premium,  fhall  be  obliged  to  acquaint  the 
infurers  of  it,  and  make  a  demand  in  fifteen  days  after  the  fliip's  failing  from, 
the  port,  otherwife  he  has  no  right  to  make  it  afterwards,  but  fiiall  lofe  the 
premium  he  had  paid. — Ordin.  of  Spain. 

10.  If  a  perfon  has  made  infurance  on  goods  which  he  doth  not  fend  or 
lade,  or  on  goods  which  are  not  fent  to  him,  alfo  if  lefs  in  value  is  fliipped 
than  he  has  infured,  he  may  demand  back  the  premium  of  infurance  of  what 
is  over-infured,  leaving  one  half  per  cent,  to  the  infurer:  but  if  the  goods 
are  already  laden  from  the  key  or  fliore,  in  barks,  wherries,  or  lightersj 
to  be  conveyed   to  the   fhips   which  were   to  tranfport  them,  and  do  return 

back,  the  abatement  fhall  then  be  one  per  cent. Returns  of  premium  for 

infurance  on  the  hull  of  the  fhip  fhall  alfo  take  place,  if  a  ftop  is  put  to  the 
voyage  infured :  but  one  per  cent,  fhall  be  paid  to  the  infurers  for  their 
trouble  and  the  rifque  they  have  run. — Ordin.  of  Anift. 

11.  The  infurers  fhall  not  be  obliged  to  return  the  premium  if  they  have 

begun  to  run   any  rifque. If  neverthelefs   the   valuation   of  the  effefts 

(without  a  fraudulent  intention)  exceed  their  real  worth,  the  afTurers  fhall 
be  anfwerable  for  the  intrinfic  value,  each  in  proportion  to  the  fums  by 
them  underwrote ;    and  alfo  to  return  the  premium  of  the  furplus  value, 

retaining  half  per  cent. If  infurance  be  made  on  goods  out  and  home, 

and  that  the  fhip  being  arrived  at  the  outward-bound  port  do  not  return, 
the  infurer  fhall  repay  one-third  of  the  premium,  except  it  be  otherwife 
ftipulated. — Ordin.  of  France, 

r  Z  12.     Remark. — 


474 


R    11    O    D    I    A    N        LAWS. 


12.  Remark. — In  England,  when  an  infurance  is  made  out  and  home, 
or  on  a  double  or  treble  voyage,  at  one  entire  pTemium,  the  rate  of  it  is 
commonly  le/s  than  the  two  or  three  feveral  premiums  would  amount  to, 
if  received  for  each  voyage y^^rtJ'fli^/)' ;  and  the  reafon  is,  that  it  is  ufually 
underflood  that,  if  the  fhip  fhould  be  loft  in  the  outward-bound  voyage, 
the  whole  premium  fliall  be  retained  by  the  infurer :  but  if  the  (hip  perform 
only  the  outward,  or  the  outward  and  the  middle  voyage,  and  does  not 
commence  the  other,  only  fuch  part  of  the  premium  ought  to  be  returned, 
as  will  leave  to  the  infurer  what  muft  have  been  paid  to  him  for  the  outward, 
or  for  the  outward  and  the  middle  voyages  feparately  ;  and  this  has  been 
frequently  pra6lifed,  without  having  regard  to  the  half  per  cent,  to  which 
the  underwriter  is  entitled  on  cancelling  his  fubfcription  to  either  rifque 
diftinft  from  the  others. 

13.  See  Prelim.  Difc.  47,  50.  Alteration  of  Policy  Voyage  or  Rifque, 
Average,  Blank,  Bottomry,  Cancelling,  Commencement  of  Voyage  or  Rifque, 
Convoy,  Departure,  Deviation,  Double- Infurance,  Intcrcji,  Mi/Iake,  Payment, 
Premium,  Prior-hifurance,  Profit,  Regulation,  Refpondentia,  Rifque,  Ship  or 
Ships,  Tender  of  Money,  Trujl  &  Trufiee,  Valuation,  War. 


RHODIAN       LAWS. 

1.  Ty  HODES   is  a  capital  city  of  a  renowned  idand  of   that  name  of 
-^  •-    about  a  hundred  and  twenty  miles  in  circumference,  fituate  in  that 

part  of  the  Mediterranean  called   the   Carpathian  Sea. The   laws  of  the 

Rhodians  are  the  moft  ancient  maritime  laws  in  the  world :  they  were  fo 
much  efteemed  amongft  the  ancient  Romans,  that  they  were  unanimoufly 
received  as  the  rule  of  all  maritime  affairs,  except  in  cafes  where  they  were 
direftly  oppofite  to  the  native  laws  of  the  country  :  and  as  the  fraud  and 
diftionefty  of  men  had  found  means  to  elude  the  true  defign  and  intent  of 
the  firft  Rhodian  legiflators,  the  Romans  took  care  to  reform  fuch  abufes, 
by  fome  explanatory  additions  to  the  aforefaid  laws,  which,  as  long  as  that 
monarchy  lafted,  they  always  held  in  great  veneration  : — even  at  this  day 
the  Rhodian  laws,  the  laws  of  Oleron,  and  other  maritime  laws  of  other 
nations,  are  received  as  the  general  law  for  deciding  all  caufes  civil  and 
maritime,  in  aid  of  the  municipal  laws  of  each  country ;  and  without  any 
apprehenfion  that  the  faid  foreign  laws  will  be  an  infringement  of  their  own 
municipal  laws;  becaufe  they  are  received  by  virtue  of  tlieir  intrinfic 
authority,   and  only  to  fupply  the  defefts  and  omiffions  of  their  own  laws, 

lor  deciding  cafes  for   which  their  own  laws  have  made  no   provifion. 

Some  of  the  more  material  of  the  Rhodian  as  well  as  other  maritime  laws  are, 
therefore,  occafionally  quoted  in  this  work. 

2.     See    Prelim.    Difc.   6'j.     Admiralty   &   Admiralty-Court,    Civil-Law, 

Freight,  General-Average,   Jettifon,  Law,  Maritime-Law,  Oleron,  Sea-Laws, 

Wijbuy-Laws,  Wreck, 

RIGGING. 


R        I        S        O        U        E.  475 


RIGGING. 

E  E    Accident,    Anchor,    Average,    Cable,    Cordage,    Cutting,    Frei<rht, 
In/ufficiency,  Repair,  Ship,  Wear  &  Tear. 


RISQUE. 

1.  nnHE   rifques    which  infurers   take    upon   them  are    exprefTed  in  the 

-*-      ordinances  and  policies,    in  moft  countries ;    as  alfo  when  they  fhall 

begin,  and  when  end :    but  thefe  circumftances,  as  well  as  fome  others,  vary 

in    different    countries. Rifques    are   of  the    ellence    of  the    contraft   of 

infurance,  and  by  the  nature  of  it  the  infurer  takes  upon  him  all  the  perils 
and  dangers  of  the  fea  to  which  the  infured  effefts  are  expofed  : — Loccenius 
de  jur.  mar.  L  2.  c.  6.  n.  ^. — Cafa  Regis,  pq//im ;  as  does  alfo  the  lender 
on  bottomry,  with  regard  to  the  effefts  affefted  by  the  loan  :  but  the  one  or 
the  other  are  anfwerable  only  for  damages  which  have  happened  by 
unavoidable  accident,  without  the  fault  or  means  of  the  affured  or  their 
agents. 

2.  The  rifques  to  which  infurers  are  liable  are  fo  various  and  innumerable 
that  it  would  be  in  vain  to  attempt  a  precife  fpecification  of  them  :  fo  far 
however,  as  is  prafticable,  they  will  be  found  to  be  circumftantially  defcribed 
and  explained  under  their  refpe6live  heads  in  the  courfe  of  this  work  ; — and, 
under  title,  War,  I  have  diftinguilhed  divers  rifques  which  are  in  that  time 
more  efpecially  to  be  attended  lo. 

3.  In  our  policies  the  rifques  defcribed  are,  as  follow,  viz.  "  of  the  Jeas, 
men  of  war,  fire,  enemies,  pirates,  rovers,  thieves,  jettifon,  letters  of  mart  and 
countermart,  fxirprifali,  takings  at  fea,  arr  efts ,  refiraints  arid  detainments  of  all 
kings, princes,  and  people,  of  what  nation,  condition,  or  quality  foever ;  barratry  of 
the  mafier  and  mariners,  Sind  all  othtx  perils,  loffes,  and  misfortiines  xhzith^xQ 
or  fhall  come  to  the  hurt,  detriment  or  damage  of  the  goods,  merchandifes, 

and  (hip,   or  any  part  thereof" There  may,  however,   be  an  exemption 

from  any  of  thefe  perils,  by  exprefs  agreement. 

4.  Insurance  fhall  not  be  made  on  the  fhip's  hull,  or  goods,  before  the 
fliip  fliali  lie  at  the  place  from  whence  one  caufes  himfelf  to  be  infured, 
without  efpecially   expreffing  in  the  policy,  that  the  fliip  was  not  yet  there 

arrived,   on   pain  of  nullity. Whereas  when  people  are  infured  on  the 

hull  or  body  of  a  (hip  to  the  Well-Indies,  Guinea,  Cape  Verde,  the  Straights, 
or  any  other  more  diftant  places,  out  and  home,  it  often  happens  that 
notwithftanding  flie  had  done  with  her  trade  wholly  or  partly,  and  the  returns 
or  produce  were  fcnt  over  with  another  flip,  or  flips,  to  the  great  advantage 
of  the  infured,  the  infured  continue  neverthelefs  trading  on;   fo  that  often  in 

length 


476  ROBBERY. 

length  of  time  the  faid  fhip  becomes  unnavlgable,  or  othenvife  in  danger; 
and  alfo  that  fhips  being  freighted  by  the  month,  have  often  earned  their 
freio^hts  outward,  and  have  notably  profited ;  but  afterwards  by  being 
unnavigable,  or  by  ftorms,  happening  to  be  loft  on  this  coaft,  or  even  in 
harbour,  the  infurers  are  caft  to  pay  the  faid  fhip  what  it  was  worth  when 
it  failed  from  this  country,  although  the  faid  fliip,  if  fhe  had  made  a  fafe 
voyage,  was  worth,  or  would  have  yielded  by  fale,  not  above  one  third  or 
one  Aa// of  what  the  infurers  pay:  in  fuch  cafes  the  commiiTioners  of  infurance 
are  authorifed  to  aft  and  to  difpofe  as  they  according  to  difcretion  fliall  think 
proper. — Ordin.of  Amjl. 

5,  Insurers  (hall  be  difcharged  from  the  rifques,  yet  fliall  gain  the 
premium,  if  the  infured,  without  their  confent,  fend  the  fliip  to  a  place  at 
a  greater  diftance  than  that  mentioned  in  the  policy,  though  it  be  in  the  fame 
courfe  ;  but  the  infurance  fhall  fully  hold  good,  if  the  voyage  be  only 
Ihortened. — Or  din.  of  France. — Guidon,  c.  9.  art.  12. 

6.  Several  ordinances  agree  in  declaring  that  when  the  voyage  \sJhortened 
tlie  rifque  ends,  and  the  premium  is  gained  :   it  is  the  infured's  own  aft. 

y.  See  Accident,  Africa,  Alteration  of  Policy  Voyage  or  Rifgue,  Average, 
Barratry,  Bottomry,  Commencement  of  Voyage  or  Rifque,  Commodity,  Convoy, 
Copenhagen,  Damage,  Departure,  Detention,  Deviation,  Dock,  Double- 
Jpfurance,  End  of  Voyage  or  Rifque,  Fire,  Fraud,  Freight,  Goods,  Infufficiency, 
Intelligence,  Law  of  Nations,  Letter  of  Marque,  Lighter,  Negled,  Piracy, 
Policy,  Premium,  Prior -Infurance,  Privateer,  Profit,  Repair,  Refpondentia, 
Return,  Robbery,  Secfon,  Sea-worthy,  Ship,  Ship  or  Ships,  Spain,  Theft, 
Time,  Touching',  Treaty y  Unloading,  Valuation,   Vera  Cruz,  Voyage,  War. 


ROBBERY. 

1.  'TTTHERE  goods  are  redeemed  from  a ^zV^^^,  contribution  muft  be 
»  '  paid  by  all,  becaufe  the  redemption  is  made  for  the  fafety  of  all ; 
but  if  the  pirate  be  once  mafter  of  the  whole,  and  yet  take  only  fome 
particular  goods,  whether  from  the  fliip  or  merchant,  and  not  as  a  fatis- 
faftion  for  fparing  the  reft ;  in  this  cafe,  becaufe  the  remainder  is  not 
aftured  thereby,  but  freely  fpared,  no  contribution  fliall  be  made  for  goods 
fpoiled  by  wet,  or  other  accident. — Molloy,  b.  2.  c.  6.  f.  13. — Malynes,  log. 
— 2  Valin's  Comm.  151,  164,  166. 

2.     See  Barratry,  Contribution,  Embezzlement,  Mcfler,  Particular-Ave- 
rage, Piracy  &  Pirate,  Ranfom,  Theft,  Total  Lofs. 


ROUEN. 


L    477    1 
B.  O  U  E  N. 

1.     Form  of  a  policy  at  Rouen, 

TN  the  name  of  God,  amen.  We  the  underwritten  merchants  of  this  city  of  Rouen, 
-*-  acknowledge  and  confefs  to  have  taken,  at  our  rifques,  perils,  and  chance,  from  you 
MefTieurs  alio  merchants  of  the  faid  city  of  Rouen,  who  agree 

to  this,  for  the  fums  which  each  of  us  fliall  have  hereunder  figned,  all  the  loffes  and 
damages  which  may  happen,  during  the  courfe  of  the  voyage  hereafter  noted,  on  the 
efFe£ls  hereunder  particularifed ;  whether  by  florms,  wreck,  ftranding,  boarding,  changing 
the  courfe,  the  voyage,  or  the  fhip ;  jettifon,  fire,  prize,  plunder,  feizure,  declaration  of 
war,  barratry  of  the  mafter,  and  generally  all  other  chances  of  the  fea ;  putting  ourfelves 
in  your  place,  to  indemnify  you  ;  you  the  afllired  paying  us  ready  money  the  premium 
or  profit  of  the  rifques  of  the  faid  affurance,  as  the  fame  fhall  be  hereafter  agreed  to  and 
concluded  :  each  of  us  in  particular  promifing,  that  if  there  happen  any  lofs  or  average 
on  the  effecls,  either  fhip  or  goods,  infured  by  us,  which  God  forbid,  we  will  pay  to  you 
the  aflured,  the  fums  which  {hall  appear  to  be  due,  as  foon  as  the  lofs  or  average  fliall  be 
infpetled  into  and  adjufted,  upon  condition  that  if  any  conteft  arife  for  the  execution 
of  the  prefent  policy,  it's  circumftances  and  dependencies,  it  fliall  be  fettled  by  two 
merchants  of  the  place,  who  fhall  be  thereunto  appointed,  viz.  one  by  the  faid  affured, 
and  one  by  us  the  afTurers;  engaging  ourfelves  to  ftand  to  their  opinion:  and  if  they 
ftiould  difagree,  they  fhall  take  a  third  merchant  alfo  of  the  place,  not  fufpefted  by  the 
parties,  by  whofe  fentiment  you  the  affured,  and  we  the  afTurers,  engage  to  abide,  or  the 
diffenter  to  be  bound  in  the  penalty  of  twenty-four  livres,  to  be  divided  ;  viz.  half  to  the 
accepter,  and  the  other  half  to  the  poor  of  the  Hotel-Dieu,  and  Invalids,  before  any 
provifion  or  recovery  of  money ;  all  according  to  the  fea  laws  of  i68i,  title  vi.  of 
affurances,  which  we  the  faid  afTurers  and  affured  promife  to  follow  and  execute ;  which 
rifques  we  have  taken  of  you  MefTieurs  for  account  of  whom 

it  may  concern,  on  efTefls  loaden,  or  to  be  loaded,  in  the  bay  of  Cadiz,  in  the  French 
(liip  from  St.  Malo,  called  the  '   ,  Capt.  ,  which  is  equipping  in  the  bay 

of  Cadiz,  for  the  South-Sea,  with  licenfe  of  the  court  of  Spain,  calling  at  Montivedeo, 
where  Ihe  is  to  land  ammunitions,  which  fhe  takes  in  at  Cadiz  for  his  catholic  majefly, 
as  the  governor  fhall  dire£l  her  courfe  for  the  South-Sea ;  the  rifque  to  commence  from 
the  dav  and  hour  that  the  faid  effects  fhall  have  been  loaden  in  the  faid  fhip,  untif  their 
arrival  at  their  defigned  port,  and  that  they  be  landed  there  either  directly  out  of  the 
fhip,  or  out  of  the  lighters  neceffary  to  carry  them  afhore :  as  alfo  on  the  returns  for  the 
faid  effects,  either  in  money  or  goods,  from  the  day  and  hour  that  the  faid  efTe8s  fhall 
have  been  put  on  board  the  lighters  at  the  Indies,  and  fliipt  in  the  faid  fliip  the 
until  her  return  to  Cadiz,  or  any  other  port  of  Spain,  Portugal,  or  France,  where  the 
faid  rifques  fliall  end,  after  the  faid  returns,  either  money  or  goods,  fliall  be  landed.  And 
the  faid  captain  fliall  have  liberty,  in  going  out,  or  coming  home,  to  touch  at  one  or 
feveral  ports  of  the  Spanifli,  Fiench,  or  Ponuguefe  colonies,  to  get  intelligence ;  audit 
is  further  allowed  to  load  the  faid  goods,  and  make  up  the  invoices  thereof,  as  fhall  be 
thought  proper  at  Cadiz,  obliging  ourfelves  to  declare  to  you  the  nature  of  the  faid  effeQs, 
their  marks  and  numbers,  if  any,  within  two  months  from  the  date  hereof.  With 
permifTion  alfo  to  you  the  affured  to  get  their  entire  value  infured  for  the  fum  of  twelve 
thoufand  livres  Tournois,  at  forty  per  cent  premium,  received  from  you  the  aflured  in 
your  noU  of  this  date,  payable  in  a  year,  the  value  for  the  premium  of  the  faid  aflUrance, 

6  A  under 


478         ROYAL-EXCHANGE-ASSURANCE-COMPANY. 

under  the  obligation  of  us  the  faid  affurers,  to  pay  and  reimburfe  in  ready  money,  either 
in  gold  or  fiiver  coin,  and  not  otherwife,  the  lofs  or  averages,  which  God  forbid !  of 
which  rcimburfcment  your  faid  note  fliall  be  in  part,  in  cafe  the  faid  rcimburfement  take 
place,  which  God  forbid !  before  it  becomes  due ;  and  that  the  value  of  each  hard  dollar 
of  the  Indies  fhall  be  efteemed  for  nine  ryals  plate  in  Spain,  although  the  freight  and 
indulto  might  amount  to  more  ^or  lefs ;  having  agreed  betwixt  us,  that  in  cafe  of  a  lofs 
in  the  out-voyage,  we  the  faid  affurers  will  return  to  you  the  faid  alTured,  befides  the 
capital  infured,  one-third  part  of  the  premium  received,  in  confideration  of  the  rifques 
that  fliould  then  not  have  been  run  for  the  return,  becaufe,  in  cafe  of  plunder  or 
average,  we  fhall  only  be  obliged  to  pay  the  overplus  of  four  per  cent,  for  each  of  the 
fums  the  prefent  policy  fliall  confift  of;  having  further  agreed  that  you  the  faid  aflured 
fliall  be  at  liberty  to  reduce  this  prefent  afTurance  to  the  rifques  of  the  out-voyage  only, 
at  25  per  cent,  premium,  if  you  declare  us  your  choice  within  two  months  from  the 
date  hereof.     Rouen  tlie  of 

2.     See  Chamber  of  AJfurance,  Policy,  Preinium,  Rclading,  Return. 
ROYAL-EXCHANGE     ASSURANCE -COMPANY. 

1.  nr'^HIS  corporation  having  been  eftabllfhed  for  the  fame  purpofes,  and 
•^     by  the  fame  charter  as  the  London-Aflurance-Company,  it  is  fuffi- 
cient  to   refer   the    reader,    for   information  concerning    it,    to    the   titles 
mentioned  at  the  foot  hereof;  and  particularly  to  tide.  Company , 

2.  Thk  propo/als  by  the  corporation  of  the  Royal-Exchange-Affurance, 
for  alluring  houfes  and  other  buildings,  goods,  wares,  and  merchandifes 
from  lofs  or  damage  hy  Jire ;  and  for  affuring  lives;  are  very  nearly  the 
fame  as  the  propofals  by  the  London-Affurance-Company. This  corpo- 
ration will,  in  cafes  of  fire,  allow  all  reafonable  charges  attending  the 
removal  of  goods,  and  pay  the  fufferer's  lofs,  whether  the  goods  are 
deftroyed,  loft,  or  damaged  by  fuch  removal. 

3.     Table  of  annual  premiums  to  be  paid  {ox  jire  affurances. 

No.  1.    Common  AJfurances. 

I     lool.l  fi,oool.    at  2s.        "y 

Any  fum  above<  i.oonlAnot  exceeding <  2, oool. )  f..,\  per  cent,  per  annum, 

y  I  V  Vic  at  2s.  OQ.  y 

(2,0001.3  (3,0001.)  ) 

No.  2.     Hazardous  AJfurances, 

(     lool.^  f  i,oool.  at  35.^ 

Any  fum  above <  i,oooI.>not  exceeding<  2,oool.  at  4s.  >  per  cent,  per  annum. 


2, oool. 

No.  3.     Doubly  Hazardous  AJfurances. 

C     lool.^  ri,ooo!.  3155.        ^ 

Any  fum  above<  i.oool.  >not  exceeding<  2,oool.  at  7s.  6d.  >  per  cent,  per  annum. 
(2,oool.^  (3,000!.  J 

N.  B.     Any 


RUNNING        FOUL. 


479 


I 


N.  B.     Any  larger  fums,  and  fome   of  the  goods  excepted  in  the  preamble,  may  be 

aflured  by  fpecial  agreement. Attendance   is  daily  given  at  their  office  on  the  Royal- 

£xchatige,  Loudon ;    and  at   their  office   in   Conduit- Street,   near  Hanover-Square,   Weft- 
minfter;    Saturdays  in  the  afternoon  excepted. 

4.     See  Bottomry,  Company,  Fire,  Lives,  London-AJJurance-Coinpany,Ufage. 

RUNNING         FOUL. 

1.  T"^  H  E  learned  prefident,  Van  BynkerJJwek,  in  his  Quejliones  Juris 
-*•  privati,  lib.  4.  employs  feveral  entire  chapters  in  difculBng  at  large^ 
in  what  manner,  and  in  what  proportion  contribution  ought  to  be  made  for 
damages  happening  to  fliips  and  goods  by  running  foul  of  each  other,  in 
various  fituations,  under  various  circumftances,  and  through  various  caufeSj 
whether  by  accident,  negligence,  or  defign ;  and  how  thofe  damages 
ought  to  be  adjufted  and  made  good  amongft  the  refpeftive  proprietors,  &Ci 
but,  as  he  is  very  prolix  and  minute  on  thofe  matters,  and  as  in  the  cafes 
and  the  arguments  which  he  adduces,  general  principles  and  cuftoms  are 
frequently  blended  with  the  exprefs  laws  of  particular  countries,  I  refer  the 
curious  and  learn'^^d  reader  to  cap.  18,  ^feq.  of  the  abovenientioned  book; 
from  which,  however,  I  tranflate  as  follows,  being  worthy  of  particular 
notice. 

2.  The  laws  of  Wilbuy  fpeak  fimply,  in  general,  of  \hejliips  ;  but  it  is 
manifeft  that  their  meaning  extends  no  lefs  to  the  cargoes,  and  that  in  all 
cafes  fliips  are  to  be  undcrftood  with  all  appurtenances,  that  is  to  fav,  that 
■whatever  is  faid  of  the  damage  done  to  fhips  is  to  include  the  cargoes  on  board 
of  them, — The  laws  of  Charles  the  V.  of  Philip  II.  and  the  Frifian  lawSj 
fpeak  fimply,  in  general,  as  the  Roman  law  does,  of  the  damage  incurred  ; 
which  is  equally  as  applicable  to  the  cargo  as  to  the  (liips  ;  and  who  carl 
believe  that  what  has  been  enaded  therein,  concerning  the  communication 
of  damage,  when  a  fliip  is  run  down  without  any  one  being  in  fault,  is  not 
alfo  to  be  underftood  of  every  kind  of  damage  which  arofe  from  fuch  accident, 
and  confequently  not  of  the  damage  done  to  the  cargo,  but  of  that  only  done 
to  the  fliip  ?  Surely  no  right  reafoning  will  fuff'er  fuch  an  interpretation : 
whatever  therefore  has  been  any  where  enabled  concerning  the  damage  done 
to  (hipping,  is  by  force  of  the  fame  law  to  be  clearly  underftood  of  the  cargo: 
fome  however  have  denied  the  communication  of  the  damage  done  to  the 
cargo  (whofe  opinion  has  been  exploded  by  others)  but  rather  by  light  than 
weighty  arguments  :  but  as  no  one  doubts  of  the  laws  in  being  among  us, 
there  is  little  occafion  for  a  difculhon  whether  their  authority  proceeds  from 
legiflation  or  from  cuflom. — Bynkcrjh.  Quejl.  Jur.  priv.  lib.  4.  c.  18. 

2.     A  CASE  v>^as  decided  by  the  fupreme  court  of  Holland  and  Zealand,  of 
which  I  was  then  a  member,  concerning  cafua!  damage : — a  fliip  came  from 

Hamburgh 


^4^<?  RUNNING        FOUL. 

Hamburgh  to  the  'rexel,and  failed  from  thence  with  feveral  others  under  con- 
\  oy  of  a  Dutch  admiral ;  after  the  fleet  had  been  fome  time  under  fail,  the 
admiral  made  a  fignal  for  tacking  about,  but  a  fhip  belonging  to  the  Eaft- 
India  company  which  accompanied  the  fleet,  and  could  not  readily  tack,  on 
account  of  it's  heavy  lading  or  the  roughnefs  of  the  fea,  llruck  againft  the 
Hamburgh  fliip  fo  violently  as  to  Jink  it: — the  proprietors  of  this  veflel  went 
to  law  with  the  directors  of  the  Eafl-India  company,  for  the  recovery  of  half 
the  damages,  as  done  through  accident,  and  without  any  one's  being  in 
fault,  according  to  the  maritime  laws  I  have  mentioned :  but  the  Eaft-India 
company  infifted  there  had  been  fault,  and  charged  it  on  the  Hamburgh 
veflel ;  becaufe  the  India  ftiip's  company  had  called  out  to  the  Hamburgher 
to  put  about  again,  for  that  they  could  not:  the  Hamburgher  made  anfwer, 
that  their  fhip's  company  had  not  heard  this  notice,  and  held  on  their  courfe 
according  to  the  Dutch  admiral's  iignal  ;  that  it  was  the  duty  of  the  India 
Ihip  to  have  done  the  fame,  and  that  the  Hamburghers  could  not  know  that 
the  India  fliip  M-ould  not  obey  the  helm,  and  were  every  moment  expe6ling 
fhe  would  alter  her  courfe  ;  and  if  flie  could  not  alter  it,  that  flie  would 
confult  her  fafety  and  their  own  by  another  method  which  they  direfled  her 
to  follow  : — thus,  as  it  ufually  happens,  they  cafl;  the  fault  on  each  other  : 
it  was  however  fufliciently  evident  that  the  damage  happened  by  mere  accident, 
and  without  any  fault  that  could  be  clearly  afcertained,  and  for  that  reafon 
ought  to  be  borne  in  common. — As  to  what  the  India  company  alleged, 
that  the  Hamburghers  left  their  fliip  too  precipitately,  in  order  to  fave  their 
lives,  Avhich  were  not  yet  in  danger,  it  was  equally  frivolous  with  what  they 
further  added,  that,  with  refpecl  to  the  Hamburghers,  they  could  not  be 
judged  by  the  laws  of  Charles  V.  or  Philip  IL  for,  to  fay  nothing  of  the  fleet 
failing  under  Dutch  convoy,  the  fame  that  is  ordained  by  thofe  laws  is  alfo 
ordained  by  feveral  of  thofe  of  Wifl^uy  :  and  thefe  are  received  at  Hamburgh 
as  well  as  here,  unlefs  in  particular  cafes.  It  was  juflly,  therefore,  the  judges 
of  Amfterdam  condemned  the  direftors  of  the  India  company,  according  to 
the  petition  of  the  Hamburghers ;  the  court  of  Holland  did  the  fame  ;  as 
did  afterwards  our  fenate. — Ibid. 

.\.  It  will  be  more  to  the  purpofe  to  confider  of  the  damage  done 
reciprocally ;  for  it  almoft  always  happens  that  a  fliip,  in  running  down  or 
flriking  againft  another,  receives  as  well  as  it  does  damage. — In  the  fentence 
by  which  the  fupreme  court  condemned  a  fliip,  that  had  run  down  another, 
to  pay  half  the  damage  done,  it  was  added,  that  it  fliould  fubftraft  half  the 
damages  it  received  itfelf  in  the  accident :  but  this  does  not  hold  always  and 
every  where  ;  for  a  clear  diftinftion  muft  be  made  whether  the  allifion  was 
reciprocal ;  for  then  the  fubftraftion  is  to  be  admitted,  if  otherwife,  it  is 
not : — for  inllance,  my  fliip  failing  overfets  your's  failing  againft  her,  and 
alfo  receives  damage  herfelf :  I  am  in  this  cafe  to  fliare  half  your  damages, 
and  you  half  of  mine  ;  but,  on  the  contrary,  if  my  fliip  overfets  your's  lying 
at  anchor,  or  faftened  by  a  rope,  and  fliould  alfo  fuffer  damage,  I  then  muft 
repair  one  /jc/i^' of  the  damage  done  to  you  ;    but  not  you  the  half  of  mine: 

and 


RUNNING        FOUL.  481 

and  this  is  founded  on  manifeft  reafon,  for  if  I  oVerfet  your  [hip/ciiling  agamU 
mine,  I  caufed  damaged  to  you  and  you  to  me  :  now  he  who  caufes  damage 
is,  by  the  laws  of  Wifbuy,  Charles,  Philip,  and  the  Frifians,  to  bear  the  one  half 
of  it ;  and  in  this  cafe  we  both  occafioned  it :  but  it  is  otherwife  if  I  fliould 
overfet  a  fliip  that  is  lying  Rill,  for  there  I  did  myfelf  the  damage  that  I 
received: — if  my  ox  kills  your  ox  that  alfails  him,  no  aftion  follows  againft 
me  ;  for  fliould  you  think  me  anfwerable,  you  are  no  lefs  miftaken  than  if 
your  ox  had  run  againft  a  ftone  of  mine,  or  fallen  into  a  ditch  which  1  had 
a  right  to  make,  you  fliould  allege  againft  me  the  hardnefs  of  my  ftone, 
and  that  it  would  not  give  way  to  your  ox  ;  or  that  the  water  belonging  to 
me,  into  which  he  threw  himfelf,  had  fuffbcated  him ;  for  as  hardnefs  is 
natural  to  ftone,  and  drowning  to  water,  fo  it  is  natural  to  an  ox  to  ftrike 
with  his  horns  when  attacked. — Ibid.   c.  21. 

5.  Most  modern  marine  laws  ordain,  that  when  two  fliips  no  ways 
wilfully,  but  accidentally,  rini  foul  of  each  other,  they  fliall  equally  bear 
the  lofs,  or  damage  which  enfues  ;  but  if  the  moiety  of  the  damage  done  to 
one  of  them  fliould  exceed  the  value  of  what  the  other  can  make  good,  no 
claim  fliall  extend  further  than  the  produce  of  the  whole  :  fo  that  the  owners, 
by  giving  up  what  was  theirs,  are  freed  from  any  further  demands. — The 
cuftom  of  equally  dividing  the  damage  happening  by  fuch  accidents  on  each 
Ihip,  was  not  heretofore  general ;  for,  in  fome  parts,  an  eftimation  of  both 
fhips  and  cargoes  was  made,  and  each  bore  of  the  damage  in  proportion  to 
tlieir  value. 

Suppofe  the  fhip  that  finks  by  running  foul  of  the  other,  to  be  worth  Rbs.  10,000 

And  the  other  to  be  valued  at -  2,000 


Rbs.  12,000 


We  thhik  tlie  lofs  will  be  equally  fuRained,  if  the  owners  of  the  fliip  and  cargo  faved, 
valued  at  Rlrs.  2,000,  pay  to  ihofe  of  the  fhip  and  cargo  loft,  worth  Rlrs.  1 0,000,  the 
fum  of  Rhs.  1,6661,  for  as  Rlrs.  12,000,  the  whole  valuation,  is  to  Rlrs.  10,000  loft, 
fo  is  Rlrs.  2,000  to  Rlrs.  i,666t,  as  above. — Or,  if  the  fliip  funk  was  in  value  Rlrs.  2,000, 
and  the  fliip  preferved  10,000,  then  the  owners  of  the  fliip  and  cargo,  worth  Rbs.  10.000, 
fliould  pay  to  thofe  t)f  the  fhip  and  cargo  of  Rlrs.  2,000  funk,  Rlrs.  1,666  t. 

Or,  if  the  repairs  of  one  of  the  fliips'  damage  fliould  coft     -         -         -         Rlrs.     500 
And  the  other - 1,000 


Rlrs.  1.500 

We  think  it  is  a  juft  equality  to  make  the  fliip  and  cargo  worth  Rlrs.  1-0,000  bear  to  the 

amount  of  _.--_....--  IJ250 

And  the  fhip  and  cargo,  worth  Rlrs.  2,000  __----  250 

Rbs.  1.500 


In  which  general  doftrines,  as  alfo  in  the  manner  how  to  reckon  the  value, 
we  differ  from  the  opinion  of  the  much  efteemed  Verzver,  of  Amfterdam, 
who  fays,  page  121,  that  "  the  fliip  is  to  be  rated  according  to  her  worth  at 
the  time  of  receiving  the  damage,  exclufive  of  provifions  and  freight ;   and 

6  B  the 


482  RUNNING        FOUL. 

the  car?o  to  be  rated  at  it's  firfl  cofl,  with  all  charges  till  on  board :"  nor 
does  he  make  any  diflinction  whether  the  accident  happened  when  the  velFel 
had  performed  half  of  her  voyage,  or  more. — We  efleem  it  jufler,  not 
only  that  a  diflinftion  fiiould  be  made  in  the  circumftanccs  wherein  the 
misfortune  happened  ;  whether  between  the  (hips  outward,  or  homeward- 
bound  ;  in  a  port,  or  at  fea  ;  but  likewife  that  regard  fliould  be  had  to  the 
place  where  the  fufferers  come  to  make  a  demand  againft  each  other  for 
damages. — To  illuflrate  this  aflertion  ; 

Let  us  fuppofe  a  fliip  from  Leghorn,  failing  up  the  Elbe  for  Hamburgh,  runs  foul  of  a 
vefTcl  coming  down,  bound  to  Cadiz  ;  the  damage  done  to  her  obliges  her  to  return  to 
Hamburgh,  in  order  to  be  repaired;  and  for  thefe  repairs  a  demand  on  the  Leghorn  fliip 
is  made  at  Hamburgh : — in  this  cafe  the  contribution  fliould  undoubtedly  be  calculated  on 
what  the  Leghorn  fhip  and  cargo  would  yield  neat  there,  and  not  on  the  cod  in  Italy  ; 
but  the  Cadiz  fliip  cannot  contribute  for  more  than  the  coft  of  the  goods  at  Hamburgh, 

with  all    charges  on  board. Let  us  further  examine  how  this    damage    ought  to  be 

divided  between  the  concerned  in  each  fliip,  in  particular : — we  will  fuppofe  that  the  fliip 
bound  fc  r  Cadiz  had  funk;  her  value  with  what  the  cargo  cofl:  at  Hamburgh  only, 
amounted  to  Rln.  2,000;  and  the  Leghorn  fliip  with  the  neat  import  of  her  cargo 
Rlrs.  10,000  : — we  therefore  maintain  that  the  ifi66^  Rix-dollan  which  the  Leghorn 
fhip  mufl;  pay  for  contribution,  ought  to  be  difl;ributed  among  the  concerned  in  the 
10,000  i?!x-(/o//(7rs  in  the  following  manner,  viz. 

1.  The  JJdp,  for  her  value  in  the  condition  flie    arrived,  or  for  what  flie  would  have 
fold  for  at  Hamburgh,  which  we  will  fuppofe  to  be         .         _         -         _         i?/ri.  2,500 

2.  For  her  x\e.d.i  freight         --.         -_--__  goo 

3.  The  failors  for  their  wages   (as  they  ought  not  to  be  freed  where   they 

have  done  nothing  to  deferve  an  exemption)  ;  we  will  fuppofe  to  he         -         -  500 

4.  The  value  which  the  cargo  would  render  neat  at  Hamburgh         -         -  6.500 

That  is  16 f  per  cent,  or  i,666f,    on  Rln.  10,000 


And  the  concerned  in  the   fliip  funk   ought  to  divide  faid  Rlrs.  1,666  t  among  them, 
in  the  fubfequent  proportions,  viz. 

1 .  The  JJiip  fliould  receive   in   proportion  to  her  value  when   flie   failed,   including  the 
provifions,  and  money  advanced  to  the  failors,  which  we  will  fuppofe  to  be         Rlrs.  1,000 

2.  The  cargo,  confifting  only  in  coals,  which  amounted  with  all  charges  on 

board,  to         ------------         1,000 


Rlrs.  2,000 


It  is  upon  thefe  two  articles  alone  the  aforefaid  Rlrs.  1,666  f  fliould  be  divided  (making 
83!  per  cent.)  bccaufe  no  freight,  or  feamens'  wages  were  due,  as  the  fhip  was  juft  going 
down  the  river,  on  her  outward-bound  voyage. — 1  Mag.  78. 

6.  If  a  fhip  under  fail  do  run  upon  another  fliip  at  anchor,  and  fink  the 
fame,  or  commit  other  damage,  the  party  offending  fhall  pay  for  all,  and 
the  fhip    fhall    alfo   be  liable  thereunto,  according  to   indifferent  judgment. 

If  by  ftorm  a  fliip  break  loofe  and   run  upon  another,   and  damage  the 

fame,  the  lofs  to  be  repaired  as  aforefaid. — Sea-Laws  of  the  Hanfe-Towns, 

7.  When   two   fliips   fail  within   or  without   the   land,    and   it   fhould 
happen  that  whilfl  under  fail  they  run  foul  of  one  another,  not  being  able  to 

fail 


RUNNING        FOUL.  483 

fail  otherwife,  or  to  give  way,  and  by  that  means  the  one  (hould  fink  the  other 
or  otherwife  damage  it,   then  fuch  damage  fliall  be  half  for  each  of  them, 
whether  it  happened  by  day  or  by  night,    in  flormy  or  calm   weather,   or 
odierwife  :    but  if  it  be   done  on  purpofe,   or  through  the  fault  of  one  of 

them,  then  diat  fhall  bear  the  damages  alone. If  it  happened,  when  fcveral 

(liips  lay  at  anchor  within  or  without  land,  that  any  of  them  fhould  break 
loofe,  and  drive,  without  any  fault  of  the  mafler,  and  that  one  did  damage 
to  another,  then  he  that  did  fuch  damage  fliall  be  obliged  to  pay  to  the  other 
which  received  the  fame,  the  half  of  fuch  damage,  according  to  the  valuation 
of  perfons  underftanding  the    fame:     and  if  the  veflcl   fo  drivino-  received 

any  damage  thereby,    it  mud  bear  the  fame  itfelf If  any  fl-,ip  coming  out 

or  going  into  the  land,  whether  under  full  fail,  or  preparing  to  fail,  fliould 
run  foul  of  another,  and  damage  the  fame,  then  he  that  w^as  under  fail  fhall 
pay  half  the  damage  to  the  fhip  which  fuffered  and  was  damaged,  provided 
he  clears  himfelf  with  the  fhip's  company  upon  oath,  that  it  did  not  happen 
by  his  fault ;  unlefs  he  that  was  damaged  can  make  the  contrary  appear  and 
that  he  himfelf  is  likewife  without  any  blame  :    in  which  cafe,  the  fnip  under 

fail,  as  aforefaid,  fhall  pay  the  whole  damage. All  fliips,   when  they  come 

to  an  anchor,  fhall  have  a  buoy  to  the  fame  ;  and  if  for  want  thereof  any 
damage  fhould  happen,  then  he  whofe  negleft  it  was,  fliall  make  good 
the  whole  dam.agc  :  but  in  cafe  fuch  buoy  fliould  be  drove  away  after  Icttino- 
go  the  anchor,  without  the  fault  of  the  mafler,   and  that  he  could  no  ways 

prevent  it,   then  he  fhall  be  liable  to  half  the  damage  only. When  two 

fliips  lie  along  fide  one  of  another,  and  one  of  them  is  aground,  or  can 
otherwife  not  give  way,  and  the  other  lies  fo  clofe  to  him,  that  it  might  prove 
hazardous,  then  he  whofe  fliip  is  aground,  and  cannot  give  way,  may  defire 
the  odier,  who  can  go  further  off,  and  make  room,  to  weigh  his  anchor  to 
prevent  any  mifchief;  which,  if  he  refufes  to  do,  he  may  then  do  it  himfelf; 
and  the  other,  if  he  forbids  or  hinders  him  from  fo  doing,  and  any  damao-e 
enfues  from  it,  fliall  be  obliged  to  pay  the  whole. — Ordm.  of  Antw. 

8.  When  two  fliips,  being  both  wider  fail,  run  foul  one  of  another  without 
being  able  to  keep  clear,  and  by  that  means  one  or  the  other  is  funk  to  the 
bottom,  or  one  or  both  of  the  fliips  and  cargoes  are  damaged,  fuch  damao-e  is 
to  be  equally  borne  by  the  two  fliips  and  cargoes,  each  the  one  half,  without 
difl;in6lion  whether  it  was  in  flormy  or  fine  weather,  by  day  or  by  nio-ht,  and  to 
be  reckoned  as  is  cuftomary  in  general  averages,  for  which  the  fliips  and  goods 
are  to  be  liable  ;   but  the  owners  and  mafters  not  to  be  anfwerable  any  further. 

If  the   accident,   either  on  one  fide  or  the  other,  happened  by  defio-n, 

or  any  remarkable  fault,  he  that  is  guilty  thereof  fhall  bear  the  zchole  lofs, 

Provided  always  that  the  owners  fliall  be  no  further  anfwerable  for  the 

faults  of  their  maflers,    than  their  fliip's  part. When   a  fhip  lyino-  fafl  at 

anchor  drives  without  the  fault  of  the  mafler,  and  by  that  means  another  fliip 
lying  at  her  moorings  receives  any  damage,  the  damage  which  the  fhip  lying 
fafl  fuifers,  fhall  be  borne  haf  by  the  other  fliip  that  was  driving ;  but  the 
fhip  lying  fafl  fhall  not  be  liable  to  any  part  of  the  damage  of  the  drivino- 

fliip. 


484  RUNNING         FOUL. 

fiiip,   even  if  it  was  occafioned  by    keeping  her  clear. The  fame  fhall 

be  alfo  obfcrved,  notwithftanding  that  the  mailer  of  the  Ihip  lying  fall  would 
not  let  go  his  cables,  when  he  was  called  to  by  the  mafler  of  the  driving 
vefiTel ;    if  by  fo  doing,    he  would  have   put  his   (hip  in  any  hazard,   in  cafe 

of  florm,   or  otherwife. A  fliip  under  Jail,    running  foul  of  another  that 

lies  fad  at  her  moorings,  without  the  fault  of  the  mailer,  and  damages  the 
fame,  the  failing  (liip  fliall  be  obliged  to  bear  half  the  damage  which  the  faid 
fliip  and  cargo  that  was  fall  may  have  fuffered : — the  mailer  of  the  failing 
vellel  fliall  however  be  obliged,  at  the  requeft  of  the  fufferer,  to  make  his 
innocence  appear,  by  his  own  and  his  fliip's  company's  oaths,  he  fliall 
otherwife  be  anfwerable  for  the  whole  damage : — 'he  that  received  the  damage 
fliall  likewife  be  admitted  to  prove  the  guilt  of  the  failing  (hip,  before  the 
oath  is  adminiRered,  either  at  the  plaintiff's  defire,  or  upon  the  judge's  decree, 
when  the  parties  have  been  heard : — if  he  that  received  the  damage  could 
have  avoided  it,  he  fliall  bear  his  own  lofs,  as  it  happened  by  his  own,  or  his 
own  mailer's  fault,  without  having  any  demand  for  the  fame  upon  the  failing 
veflel. When  two  fliips  lie  fo  clofe  together  that  danger  is  to  be  appre- 
hended from  it,  and  that  the  one  lies  dry,  or  can  otherwife  not  give  way, 
then  the  mailer  of  the  vefTel  that  cannot  be  moved,  may  defire  the  mailer  of 
the  other  fliip  to  weigh  his  anchor,  and  make  room : — and  in  cafe,  on  this 
requefl,  and  the  complying  with  it,  any  damage  happens  to  the  fliip  or  cargo 
that  gives  way,  a  reafonable  fatisfaftion  fliall  be  made  for  the  fame  : — if  the 
mafler  of  the  fliip  that  could  give  way  refufes  to  do  it,  when  required  by 
the  mafler  of  the  fhip  that  lies  on  dry  ground,  or  hinders  him  in  the  doing 
of  it,  he  fliall  be  liable  to  make  amends  for  the  damage  that  may  enfue  from 

it. In  all  tliefe   cafes,    and   in  the  calculation  of  tlie  damages,    fhall  be 

confidered  the  repairs,   the  fpoiling,  and  the  perifhing ;    but  no  regard  is  to 
be  had  to  any  valuation  after  it  happened. — Or  din.  of  Rett. 

g.  The  owners  and  proprietors  of  the  T^^?}^,  and  goods  onboard,  which 
was  funk  or  damaged  by  being  run  foul  of,  fhall  profecute  their  right  againfl 
the  owners  and  freighters  of  the  other  fliip,  that  did  the  damage,  for  the 
benefit  of  the  afTurers,  if  they  require  it,  but  at  their  own  proper  rifque  and 
charge,  as  far  as  the  value  of  fuch  fliip  and  the  cargo  it  had  on  board  amount 
to;  and  every  thing,  that  they  may  recover,  either  bydecifion  and  verdi6l  of 
the  law,  or  by  arbitration,  with  confent  of  the  afTurers,  fliall  be  made  good 
again,  after  dedufting  the  charges,  to  the  faid  afTurers  in  general,  in  pro- 
portion to  a  repartition  to  be  made  according  to  the  fums  they  have  underwrote, 
and  paid  their  fhares  of  the  lofs  accordingly. — Ordin.  of  Hamb. 

10.  If  txoo  Jliips  under  fail  run  foul  of,  or  flrike  againfl;  each  other, 
without  any  poflibility  on  either  fide  of  preventing  it,  whether  it  be  by  day  or 
night,  in  a  florm  or  eafy  weather,  in  the  open  fea,  or  in  a  road  or  harbour, 
fo  that  one  or  the  other  fplits  or  finks,  or  that  one  or  both,  together  with  their 
cargo,  receive  damage  either  by  jettifon  of  the  goods,  or  in  any  other 
manner,    fuch  damages  fliall  be  jointly  ejiimated  and  charged  to  both //lifs 

and 


RUNNING         F    O    U    L.  4$^ 

and  tlieir  lading,  as  is  ufual  in  general  averages,  fo  that  each  of  the  two 
fliall   bear  the  half  ol"  the   lofs,   according  to  the  value  of  the  lading  and 

freightage  of  both  fliips. A  fhip  under   fail,    without  any  fault  of  the 

mafter,  running  foul  of  another  lying  at  anchor,  or  made  fafl:  to  the  (liore 
with  ropes,  and  any  damage  done  hereby,  it  (hall  make  good  a  half  oi  fuch 
damages  ;    but  any  damages  which  the  (hip  under  fail   may  receive  fliall  be 

borne  by  itfelf. In  cafe  the  damaged  fliip  could  have  avoided  it,  and  did 

not,    it's  damages  fall  upon  itfelf When  two  or  more  fliips  are  lying  at 

anchor,  and  another,  in  what  manner  foever  it  may  happen,  is  in  danger  of 
coming  too  near,  the  mafter  who  lies  foremoft  fliall,  if  he  can,  make  way, 
and  be  obliged  at  the  other's  call  to  weigh  anchor  and  remove ;  in  failure 
whereof,  he  fliall  be  anfwerable  for  whatever  damages  may  enfue ;  efpecially 
if  happening  in  a  harbour  where  the  water  may  ebb  away  and  the  fliip  be 
aground :— in  cafe  he  who  in  this  manner  endeavours  at  the  other's  call  to 
make  way,  fliall  receive  any  damage  in  fliip  or  goods,  he  fliall  be  indemnified 
by  the  other  according  to  arbitration  :  but  if  in  making  way  he  fliall  happen 
to  do  any  damage  to  the  other  fliip  or  goods,   he  fliall  not  be  anfwerable  for 

it. If  a  mafter  coming  under  fail  will  not  keep  out  of  the  way  when  it  is 

in  his  power,  and  he  is  called  to  from  the  other  at  anchor,  or  hinders  the 
other  from  making  way ;    all  the  damages  which  he  has  thus  occafioned,  he 

{hall  make  good. If  one  of  the  fliips  at  anchor  happens  to  break  loofe 

and  drives  upon  another  likewife  made  faft,  fo  as  to  damage  it ;  it  fliall  make 
good  one  half  o^  ^uc\\  damages  ;   but  whatever  damages  may  happen  to  the 

fhip  thus  broke  loofe,  they  all  fall  only  upon  itfelf. If  the  mafter  whofe 

fliip  is  driving  call  upon  him  who  is  at  anchor  to  flip  his  cable,  but  the 
latter  on  account  of  bad  weather  or  fome  other  caufe  cannot  do  it  without 
endangering  his  fliip,  the  driving  fliip  fliall  pay  half  the  damages  done  to 

the  other  fhip. Two  fliips  breaking  loofe  and  driving  againft  each  other, 

each  fliall  bear  half  the  damages. In  all   thefe    and  the   like   cafes   the 

owners,  freighters,  or  mafters,  fliall  not  be  bound  to  pay  or  make  good 
beyond  the  amount  of  the  value  of  the  fliip  and  cargo  belonging  to  them  ; 
every  one  paying  according  to  his  fhare  therein,  and  not  more. Misfor- 
tunes and  damages  happening  in  the  manner  foregoing  to  a  fliip  and  goods 
infured,  the  owners  are,  at  the  defire  and  on  the  account  of  the  infurer,  to 
profecute,  as  makes  beft  for  his  advantage,  his  claim  of  redrefs  on  the 
owners  and  freighters  of  the  fliip  which  occafioned  the  damages,  to  the 
amount  of  the  value  of  the  fliip  and  cargo ;  and  what  has  been  thus 
recovered,  whether  by  a  procefs  and  juridical  verdift,  or  an  arbitration  to 
which  the  infurer  had  confented,  goes,  after  dedufting  of  charges,  to  the 
infurer  of  what  is  fpecified  in  the  policy. — Ordin.  of  Stockh. 

11.  The  damage  which  happens  or  is  occafioned  to  a  fhip  at  fea,  at 
anchor,  io  a  road,  or  in  a  harbour,  by  any  other  fliip,  or  fliip's  anchor, 
whether  it  be  to  the  hull,  the  apparel,  or  the  goods  on  board,  or  likewife 
by  the  anchors  or  cables  running  from  it,  if  the  fliip  comes  to  drive  after 
having  found  bottom ;  in  which  cafe,  they  who  do  and  receive  fuch  damages 

6  C  Ihall 


486  RUNNING        FOUL. 

fhall  indemnify  each  other :  but  if  a  fiiip,  in  open  fea,  be  by  day  or  night 
run  down  and  loft,  fo  that  it  is  not  known  who  did  it,  or  the  infured  can  get 
no  information  of  it,  this  like  other  damages  (hall  be  paid  by  the  infurers,  who 
again  may  feek  redrefs  from  them  who  did  the  damage. — Ordin.  of  Copcnh. 

12.  If  fliips  run  foul  of  one  another,  either  on  the  voyage,  in  a  road,  or 

in  port,  tlie  damage  (hall   be   paid    equally  by  both. If,   however,   the 

running  foul  (hall  be  by  the  fault  of  one  of  the  mailers,  the  damage  (hall  be 
made  good  by  him  who  was  the  caufe  of  it. — Ordin.  oj  France. 

13.  Remarks. — Damages  which  happen  by  means  of  fliips  running  foul 
ought  to  be  demanded  and  fettled  as  foon  as  poITible ;  in  order  that  fuch 
damages  may  not  be  blended  with  averages  which  happen  othcrwife,  to  the 
prejudice  of  any  of  the  perfons  concerned :  for  tliis  reafon,  the  Ordin.  of 
France,  liv,  i.  tit.  12.  art.  8.  prefcribes  that  "  every  demand  by  reafon  of 
running  foul  fliall  be  made  within  twenty-four  hours  after  the  damage 
received,  if  the  accident  happens  in  a  port,  harbour,   or  other  place   where 

the  mafter  can  aft." The  equity  of  indemnifying,  or  contributing  to  the 

damages  done  by  running  foul,  holds  good  equally  with  regard  to  the  king's 

jhips  as  thofe  of  private  perfons. With  refpeft  to  the  maflers  of  the  fliips, 

it  is  very  common  for  each  to  charge  the  other  with  being  the  caufe  of  the 
damage  :  and  it  is  often  difficult  to  judge  on  which  fide  the  fault  lies,  fo  as 
to  fix  the  reparation  of  it  on  one   party  only ;    and  therefore  the  damage 

fuftained  on  both  fides  is  ufually  fettled  by  way  of  general  average. The 

averages  which  arife  from  fliips  running  foul,  are  often  liable  to  much 
embarraflinent,  in  refpeft  to  the  adjufting  them  with  fatisfaftion  to  all  the 
parties  interefted  therein ;  nor  are  the  rules  hitherto  prefcribed  on  thefe 
occafions,  either  by  the  laws,  or  writers,  of  any  country,  fufficiently  clear 
and  explanatory :  thofe  which  I  have  here  felefted  from  foreign  ordinances  and 
authorities,  are  drawn  from  the  Roman,  Oleron,  WiflDuv,  and  Hanfeatic  laws : 
— ^but  as  there  is  fome  difference  in  thofe  rules,  which,  therefore,  are  liable 
to,  and  in  fa6l  do  often  occafion  a  diverfity  of  interpretation  and  judgment 
in  the  application  of  them ;  and  as  the  cafes  and  circumflances  of  fliips 
running  foul  are  fo  various,  that  it  is  indeed  hardly  poflTible  in  form  fuch 
precife  and  fixed  rules  as  might  be  fuitable  in  all  of  them ;  the  moft 
proper  mode  of  deciding  thofe  matters  is,  by  the  arbitration  of  flvilful  and 
judicious  perfons. 

14.  See  Average,  Contribution,  Cutting,  Damage,  General-Average, 


SAILING    ORDERS. 


s. 


SAILING         ORDERS. 

1.     A   DMIRALTY  and  failing  orders,  and  other  charges  when  a  fhlp 

-^^^  fails  in  company  with  a  fleet,  are  not  chargeable  to   average. 

Ordin.  of  Copenh. 

2.     See  Prelim.  Difc.  50.  Convoy,  Petty-Average. 

SAILOR    S'        WAGES. 

See  Prelim.  Difc.  51.  Wages, 

SAILS. 

See  Accident,   Anchor,  Damage,  General- Aver  age.   Repair,   Ship,  Stranded 

&  Stranding,   Wear   &   Tear. 

SALT. 

1.  /^ASE. — Several  men  lade  aboard  fait  without  difiinftion,  not  putting 
V->  it  in  facks,  and  the  like  ;  the  fliip  arrives,  the  mafter  delivers  to  the 
principals  according  to  their  bills  of  lading,  as  they  come  out  one  by  one ; 
it  falls  out  that  fome  of  the  fait  is  wafhed  or  lofl  by  reafon  of  the  dampnefs 
of  the  fliip,  and  that  the  laft  two  men  cannot  receive  their  proportion: — 
there  are,  in  this  cafe,  three  things  to  be  confidered ;  viz. —  1.  whether  the 
maflier  is  bound  to  deliver  the  exaft  quantity  ? — 2.  whether  thofe  who  have 
received  this  lofs  can  charge  the  aflurers  ? — 3.  whether  the  aflurers  can  bring 
in  the  firft  men  for  a  contribution,  they  having  their  fait  delivered  to  them 
completely  ? — Certainly  the  mafter  is  not  bound  to  deliver  the  exaft 
quantity,  nor  is  he  obliged  to  redeliver  the  very  fpecific  fait,  but  only  as 
men  are  to  receive  and  pay  money  or  corn  in  a  bag  or  fack,  and  out  of  them  ; 
but  if  the  fault  was  in  not  pumping,  keeping  dry  his  deck,  or  the  like,  there 
€  contra  :    though  perhaps  there  may  be  a  fpecial  agreement ;  befides,  this 


IS 


488  SALVAGE. 

is  a  peril  of  the  Tea,  which  the  mafter  could  not  prevent,  and  of  necefTity  he 
mud  deliver  to  one  firll  before  another : — as  to  the  fecond,  it  is  no  queftion 
but  that  the  afTurers  (hall  anfwer ;  but  whether  they  {hall  bring  in  the  firft 
men  for  contribution,  may  be  fome  doubt :  it  has  been  conceived  by  fome 
that  they  ought  not,  for  they  delivered  their  fait  to  the  mafter  tanquavi  in 
creditiLVi,  and  were  not  to  expeft  the  redelivery  of  the  fame  fpecific  fait ; 
befides  the  mafter  niuft  of  neceflity  deliver  to  one  man  before  another:  but 
by  others  it  has  been  conceived  they  ought  to  contribute  pro  ratione ;  for 
as  of  goods,  fome  muft  neceftarily  be  flowed  in  the  hold  (and  fuch  goods 
feldom  efcape  the  peril  of  the  fea)  fo  the  reft  muft  of  neceftity  contribute 
to  that  misfortune,  and  therefore  make  no  diftinflion. — Molloy,  b.  2.  f.  7. 
f.  15.  Hob.  88. — Lajlloxo  &  Tomlinfons  Cafe. 

2.  Remark. — The  above-mentioned  cafe  was  before   the   introduftion 
of  the  N.  B.  at  the  foot  of  our  policies,  whereby  "  fait,  &c.   are  free  of 

average,    unlefs  general  or  the  fliip  be   ftranded." In  infurances  on  fait, 

regard  ftiould  be  had  whether  the  excife  duties  of  3s.  4d.  per  bufliel  be 
included  in  the  invoice  amount ;  becaufe  there  is  a  drawback  of  the  fame, 
on  due  exportation  : — in  cafe  of  lofs  or  ftranding,  there  ought  ajfo  to  be  an 
allowance  for  wajle ;  this,  by  the  Stat.  5  Ann.  c.  29.  f.  14.  is  deemed  to  be 
four  bufliels  for  every  forty  bufliels  of  white  fait,  and  two  bufhels  for  every 
forty  buQiels  of  rock  fait. 

3.  See  Average,  Colony,  Commodity,  Corn,   Free  of  Average,  Goods,  Peafe, 
Peri/Iiable-Commodities,  Stranded  &  Stranding. 


SALVAGE. 

1.   QALVAGE  is  an  allowance  made  forfaving  of  a  ftiip  or  goods,  or  both, 

^  from  the  dangers  of  the  feas,  pirates,  or  enemies  ;  and  is  provided  for, 

and  regulated  by  the  undei'-mentioned  ftatutes : — it  alfo  means  the  effe6ts  faved. 

2.  By  Stat.  12  Ami.  ft.  2.  c.  18.  f.  1. — The  flieriffs,  jufticcs  of  peace  of 
every  county,  and  all  mavors,  bailiffs,  and  other  head  officers  of  corporations, 
and  port  towns  near  the  fea,  and  all  conftables,  headboroughs,  and  officers 
of  the  cuftoms,  ffiall,  upon  application  made  to  them,  on  behalf  of  any 
commander  of  a  ffiip,  being  in  danger  of  being  ftranded,  command  the 
conftables  of  the  ports  nearell  the  coaft  where  fuch  ffiip  ftiall  be  in  danger, 
to  fummon  as  many  men  as  ffiall  be  thought  neceffary,  to  the  affiftance  of 
fuch  fhip  ;  and  if  there  ffiall  be  any  ffiip  belonging  to  her  mrijefty  or  her 
fubjefts,  riding  near  the  place,  the  officers  of  the  cuftoms,  and  conftables, 
arc  required  to  demand  of  the  fuperior  officers  of  fuch  fhip,  affiftance  by 
their  boats,  and  fuch  hands  as  they  can  conveniently  fpare  ;  and,  in  cafe 
fuch  fuperior  officer  of  fuch  Ihip  negleft  to  give  fuch  alliftance,  he  fliall  forfeit 
lool.  to  be  recovered  by  the  fuperior  officer  of  the  ffiip  in  diftrcfs,  with  cofts, 

iu 


SALVAGE.  48^ 

in   any  of  her  majefty's  courts  of  record. S.  2.    The   colleclors  of"  the 

cufloms,  and  the  commanding  officer  of  any  fliips,  and  all  others  who  fliall 
act  in  the  preferving  of  any  fuch  fhip  in  diftrefs,  or  their  cargoes,  fhall, 
within  thirty  days,  be  paid  a  rea/onable  reward,  by  the  commander  or  owners 
of  the  fliip  in  diflrefs,  or  by  the  merchant,  whofe  fliip  or  goods  fliall  be 
(aved  ;  and  in  default  thereof,  the  (hip  or  goods  fliall  remain  in  the  cuflody 
of  fuch  officer  of  the  cufloms,  until  all  charges  be  paid,  and  until  the  faid 
officer  of  the  cufloms,  and  the  majler  or  other  officer  of  thejliip,  and  all  others 
fo  employed  fliall  be  reafonahly  gratified,  or  fecurity  given  for  that  purpofe, 
to  the  fatisfaftion  of  the  parties ;  and  in  cafe,  after  fuch  falvage,  the  com- 
mander, mariners,  or  owner  of  fuch  fliip  fo  faved,  or  merchant  whofe  goods 
fliall  be  fived,  fliall  difagree  with  the  officer  of  the  cufloms,  touching  the 
monies  deferved  by  <^»j' of  the  perfons  employed,  it  fliall  be  lawful  for  the 
commander  of  the  fliip  fo  faved,  or  the  owner  of  the  goods,  or  the  merchant 
interefled,  and  alfo  for  the  officer  of  the  cufloms,  to  nominate  three  of  the 
neighbouring  >/y?z'<:«  of  peace,  who  fliall  adjuft  the  quantum  o[  the  grattcities, 
to  be  paid  to  the  feveral  perfons,  and  fuch  adjuflments  fliall  be  binding  to 
all  parties,  and  fliall  be  recoverable  in  an  atlion  at  law  in  any  of  hcr 
majefty's  courts  of  record ;  and  in  cafe  no  perfon  fliall  appear  to  make  his 
claivi  to  the  goods  faved,  the  chief  officer  of  the  cufloms  of  the  neareft  port, 
fhall  apply  to  three  of  the  neareft  juftices  of  peace,  who  fliaU  put  him,  or 
■fome  other  refponfible  perfon,  in  poileffion  of  the  goods,  fuch  juftices  taking 
an  account  of  the  goods,  to  be  figned  "by  fuch  officer  of  the  cuftoms ;  and 
if  the  goods  fliall  not  be  claimed  within  twelve  months,  public  fale  fliall  be 
made  thereof  (and  \{  perifiiable  goods,  forthwith  to  be  fold)  and,  after  charges 
deducled,  the  refidue  of  the  monies,  with  an  account  of  the  whole,  fliall  be 
tranfmitted  to  her  majefly's  exchequer,  for  the  benefit  of  the  owner,  who, 
upon  affida\it  or  other  proof  of  his  property,  to  the  fatisfaftion  of  one  of  the 

barons,  fliall,    upon  his  order,   receive  the  fame. S.  ,3.   If  any  perfons, 

bcfides  thofe  inipowered  by  the  officer  of  the  cuftoms,  and  the  conftables, 
fhall  enter,  or  endeavour  to  enter  on  board  any  fuch  fliip  in  diflrefs,  without 
the  leave  of  the  commander,  or  of  the  officer  of  the  cuftoms,  or  conftable; 
or  in  cafe  any  perfon  fliall  moleft  them,  in  the  faving  of  the  fliip  or  goods, 
or  ffiall  deface  the  marks  of  any  goods,  before  the  fame  be  taken  down  in  a 
book  by  the  commander,  and  the  firft  officer  of  the  cuftoms ;  fuch  perfon 
fliall,  within  twenty  days,  make  double  fatisfaftion,  at  the  difcretion  of  the 
two  next  juftices  of  peace,  or  in  default  thereof,  ffiall  by  fuch  juftices  be  fcnt 
to  the  next  houfe  of  correftion,  where  he  ffiall  be  employed  in  hard  labour 
twelve  months  ;  and  it  ffiall  be  lawful  for  any  commander,  or  fuperior  officer 
of  the  ffiip  in  diftrefs,  or  of  the  officer  of  the  cuftoms,  or  conftable  on  board 
the  ffiip,  to  repel  by  force  any  fuch  perfons  as  fliall,  without  confent  as 
aforefaid,  prefs  on  board  the  faid  fliip  in  diftrefs,  and  thereby  moleft  them  in 

the  prefervation  of  the  ffiip. S.  4.  In  cafe  any  goods  ffiall  be  found  on 

any  perfon,  that  were  fiolen  or  carried  off  from  any  fuch  fliip  in  diftrefs,  he, 
on  whom  fuch  goods  Ihall  be  found,  fliall,  upon  demand,  deliver  the  fame 
to  the  owner,  or  to  fuch  perfon  by  fuch  owner  auihorifed  to  receive  the 

6  D  fame. 


490 


V        A        G        £. 


fame,  or  fliall  be  liable  to  pay  treble  the  value,  to  be  recovered  by  fuch 

owner  in  an  atlion. S.  5.  If  any  perfon  (hall   make,  or  be  aifilling  in  the 

making,  a  hole  in  any  fhip  fo  in  difhefs,  or  flcal  any  pump,  or  fhall  be  aiding 
in  the  Healing  fuch  pump,  or  fliall  wilfully  do  any  thing  tending  to  the 
immediate  lofs  of  fuch   fliip,  fuch  perfon  fhall  be  guilty  of  felony  without 

benefit  of  clergy. S.  6.  If  any  aftlon  be   profecuted  for  any  thing  done 

in   purfuance  of  this  aft,   all  perfons  fo  fued  may  plead  the  general  ilfue ; 

and  this  aft   fliall  be  a  public  a61;. S.  7.  If  any  officer  of  the  cufloms 

fliall,  by  fraud  or  wilful  negle6i,  abufe  the  trufl:  hereby  repofed  in  him,  and 
fliall  be  convifted  thereof,  fuch  officer  fliall  forfeit  treble  damages  to  the 
party  grieved,  &c.  and  fliall  be  incapable  of  any  employment  relating  to  the 

cultoms. S.   8.    This  aft  fliall  be  read  four  times  in  the  year,    in  all 

churches  and  chapels  of  every  fea-port  town,  and  upon  the  fea  coafl,  upon 
the  fundays    next  before   Michaelmas-day,    Chriflmas-day,    Lady-day,    and 

Midfummer-day,  in  the  morning  after  prayers  and  before  fermon. S.  9. 

This  aft  fliall  not  prejudice  her  majefly,  or  any  grantee  of  the  crown,  or 
any  lord  of  a  manor,  or  other  perfon,  in  relation  to  any  right  to  zoreck,  or 
goods  that  diXt  Jlotfam,  jetfani,  or  lagan. 

3.  By  Stat.  4  Geo.  1.  c.  12. — The  above  aft  is  made  perpetual;  but  fliall 
not  affeft  the  ancient  jurifdiftion  of  the  admiralty-court  of  the  Cinque  Ports, 
but  the  officers  of  the  faid  court  fliall  put  the  faid  aft  in  execution,  within 
the  jurifdiftion  of  the  Cinque  Ports. 

4.  By  Stat.  26  Geo.  2.  c.  ig.  Jl  1. — If  any  perfon  plunder,  fteal,  take 
away,  or  deftroy  any  goods  or  efl'efts,  from,  or  belonging  to,  any  fliip  or 
vefl'el  which  fliall  be  in  diftrefs,  or  fliall  be  wrecked,  lofl:,  ftranded,  or  cafl: 
on  fliore,  in  any  part  of  his  majeft;y's  dominions  (whether  any  living 
creature  be  on  board  or  not)  or  any  of  the  furniture,  tackle,  apparel, 
provifions,  or  part  of  fuch  veflel ;  or  fliall  beat,  or  wound,  wkh  intent  to 
kill  or  deflroy,  or  fhall  otherwife  wilfully  obftruft  the  cfcape  of  any  perfon 
endeavouring  to  fave  his  or  her  life,  from  fuch  fliip  or  wreck  tliereof ; 
or,  put  out  any  falfe  light,  with  intent  to  bring  any  fliip  into  danger,  fuch 
perfon  fo  offending,  fliall  be  deemed  guilty  of  felony,  and  being  convifted 
thereof,  fliall  fuffer  death,  as  in  cafes  of  felony,  without  benefit  of  clergy. 
^—^ — S.  2.  When  goods  of  fmall  value  fliall  be  cafl;  on  fliore,  and  ftolen 
without  circumftances  of  cruelty  or  violence,  the  offender,  on  convic- 
tion,   to    be   puniffied   as    in    cafes   of  petit-larceny. S.  3.    It   fhall  be 

lawful  for  any  juflice  of  peace,  upon  information  on  oath,  of  any  part 
of  the  cargo,  or  effefts  of  any  fliip,  lofl  or  ftranded,  being  unlawfully 
carried  away,  and  concealed,  to  iffue  his  warrant  for  fearching  any  houfe,  &c. 
as  in  other  cafes  of  ftolen  goods :  and,  if  the  fame  fliall  be  found  in  fuch 
houfes,  &c.  or  in  poffeffion  of  any  perfon  not  legally  authorifcd  to  keep 
the  fame,  and  the  owner  of  fuch  houfe,  or  the  perfon  in  whofe  cuftody  the 
fame  fhall  be  found,  fhall  not  give  an  account  to  the  fatisfaftion  of  the 
juftice  of  the  peace,  how  he   came  by  the   goods,   it  fliall  be  lawful  upon 

proof 


S        A        L        V        A        G        E.  ,^g, 

proof  of  fuch  refufal,  and  the  juftice  Is  required,  to  commit  the  offender  to  the 
common  goal   for  fix  months,  or  until  he  (hall  have  paid  the  o.vner  treble 

tlie  value  of  the  things  unlawfully  detained. S.  4.  If  any  perfon  offer  to 

lale  any  effecls  belonging  to  any  veil'd  loll,  &c.  as  aforefaid^  and  unlawfully 
taken  away,  or  fufpetled  to  have  been,  it  fhall  be  lawful  to  fcizc,  and  carry 
the  fame,  or  give  notice  thereof  with  all  convenient  fpeed,  to  fome  juflice 
of  the  peace  ;  and,  if  the  perfon  offering  them  to  fale,  or  fome  other  perfon 
in  their  behalf,  fliall  not  appear  before  the  juftice  within  ten  days  after  fuch 
fei/.urc,  and  make  out  to  the  fatisfaaion  of  the  juftice,  his  property  in  the 
goods,  or  in  fome  perfon  who  employed  him,  then  the  goods  fliall  be 
delivered  for  the  ufe  of  the  right  owner,  upon  payment  of  a  reafonablc 
reward  for  fuch  fcizure,  to  be  afcertained  by  the  juftice,  to  the  perfon  who 
feized  the  fame,  and  fuch  juftice  fhall  commit  the  offender  to  the  common 
goal   for   ftx  months,    or  until  he   fl:all  ha-vc  paid  the  owner,   &c.   treble  the 

value  of  the  goods. S.  5.  In  cafe  any  perfon  not  employed  by  the  mafter 

&c.  in  the  falvage  of  any  vefTel,  or  the  cargo,  &c.  fliall  in  the  abfence  of 
perfons  fo  employed,  fave  any  fuch  fhip,  goods,  &c.  and  caufe  the  fame 
to  be  carried  for  the  benefit  of  the  ov.-ners  into  port,  or  place  of  fafe  cuftody, 
immediately  giving  notice  to  fome  juftice  of  tlie  peace,  magiftrate,  cuftom- 
houfe,  or  excife  officer,  or  fliall  difcover  to  any  magiftrate  or  officer,  where 
any  fuch  goods  are  wrongfully  bought,  fold,  or  concealed,  fuch  perfon  fliall 
be  entitled  to  a  reafonable  reward,  to  be  paid  by  the  mafter  or  owner  of  fuch 
veflel,    &c.  in  like  manner  as  falvage  is  to  be  paid,  by  the  12  Anne,  or  in  the 

manner  herein   after   prefcribed. S.    6.   For   the   better   afcertaining  the 

falvage,  and  putting  the  ads  in  execution,  the  juftice  of  the  peace,  mayor, 
bailiff,  collector  of  the  cuftoms,  or  chief  conftable,  neareft  to  the  place  where 
any  (hip  is  ftranded  or  caft  away,  ffiall  forthwith  give  notice  for  the  meeting 
of  the  fheriff  or  his  deputy,  the  juftices  of  the  peace,  mayors,  or  other  chief 
magiitrates  of  towns  corporate,  coroners,  and  commiffioners  of  land-trx,  or 
any  five  or  more  of  them,  who  are  required  and  empowered  to  employ  proper 
peifons,  for  faving  (hips  in  diftrefs,  and  fuch  (hips  and  goods  as  (hall  be  ftranded 
or  caft  away ;  and  alfo  to  examine  perfons  concerning  the  fame,  or  the 
falvage  thereof,  to  adjuft  the  quantum  of  fuch  falvage,  and  diftribute  the 
fame,  in  cafe  of  difagreement  among  the  parties :  and,  that  every  perfon 
attending  and  afting  at  fuch  meeting,  (hall  be   allowed  four  fliillings  a  day, 

out  of  the    effefts    faved   by  their  care    and    direftion. S.  7.   But  if  the 

charges  and  reward  for  falvage,  direfted  by  the  aft  12  Anne,  and  by  this  aft, 
be  not  paid  or  fecurity  given  within  forty  days,  the  officer  of  the  cuftoms 
concerned  in  fuch  falvage,  may  borrow  money  on  the  goods,  &c.  by  bill 
of  fale,   on  fuch  parts  of  the  goods,   &c.   as  fliall  be  fufficient,    redeemable 

upon  payment  of  the  principal  fum  and'  intereft,    at  four  per  cent. S.  8. 

And  if  oath  be  made  before  any  magiftrate,  lawfully  impowercd  to  take  the 
fiime,  of  any  theft,  and  the  examination  taken  (hall  be  delivered'to  the  clerk 
of  the  peace,  for  the  county,  &c.  or  his  deputy ;  or  if  oath  fliall  be  made 
of  the  breaking  any  (hip,  contrary  to  the  aft  12  Anne,  and  the  examination 
delivered  to  the  clerk  of  the  peace  or  his  deputy,  he  (hall  caufe  the  offender 

to 


49^ 


ALVA 


to  be  profecutcd,  either  in  the  county  where  the  faft  was  committed,  or  the 
county  adjoining,  where  any  inditlment  may  be  laid  by  any  other  profecutor ; 
and  if  the  lacl  be  committed  in  Wales,  then  the  profecution  may  be  carried 
on  in  the  next  adjoining  EngHOi  county  :  the  charge  of  fuch  profecution 
by  the  clerks  of  the  peace,  to  be  fettled  by  the  jullices  at  feflion,  and  paid 
by  the  treafurer  of  the  county,  &c.  the  clerk  of  the  peace,  on  refufal  or 
negle6l  to   carry   on  fuch   profecution,   to   forfeit  one  hundred  pounds  for 

every   offence,  to  any   perfon   who   fliall  iue  for  the  fame. S.  lo.   The 

lord  warden  of  the  Cinque  Ports,  the  lieutenant  of  Dover  Caftle,  the  deputy 
warden  of  the  Cinque  Ports,  and  the  judge  official,  and  commifl'ary  of  the 
court  of  admiralty  of  the  Cinque  Ports,  two  ancient  towns,  and  the  members 
thereof,  for  the  time  being,  and  every  perfon  appointed  by  the  lord  warden 
of  the  Cinque  Ports,  fliall  put  the  a6ts  in  execution  within  the  jurifdiction  of 
the  Cinque  Ports,  two  ancient  towns,  and  their  members  in  the  fame  manner 

as  the  jullices,  &c.  in  other  places. S.  1 1.  If  any  perfon,  appointed  to  put 

this  acl  in  execution  fliall  be  wounded  in  fuch  fervice,  fuch  perfon  or  perfons, 
fo  wounding  him  fhall,  upon  trial  and  conviflion,  at  the  alfizes  or  general 
o-oal  deliverv,  or  at  the  general  or  quarter  feffions  for  the  county,  &c.  be 
tranfported  for  feven  years,  to  fome  of  his  majefly's  colonies   in  America. 

S.  12.  Any  juflice  of  the  peace  in  the  abfence  of  the  flieriff",   may  take 

fufficient  power  to  reprefs  all  violence,  and  enforce   the   execution  of  this 

aft. S.  13.  To  prevent  confufion    among  perfons  aflembled  to  fave  any 

flaip,  &c.  all  perfons  fliall  conform  to  the  orders  of  the  mafler,  or  other 
officers,  or  owners  ;  or  for  want  of  their  prefence  or  direftion,  to  any  of  the 
perfons  appointed  to  put  this  aft  in  execution,  in  the  following  fubordination  : 
firfl;,  to  the  orders  of  the  officer  of  the  cuflonis,  then  of  the  cxcife,  the 
{herifF  of  the  county,  or  his  deputy,  a  juftice  of  peace,  the  mayor  or  chief 
magiflrate  of  any  corporation,  the  coroner,  the  coniniiffioner  of  the  land-tax  ; 
then  of  any  chief  conflable,  petty  conftable,  or  other  peace  officers :  and, 
whoever  afts  knowingly,  or  wilfully,  contrary  to  fuch  orders,  forfeits  five 
pounds,  and  in  cafe  of  non-payment,  to  be  fent  to  the  houfe   of  correftion 

for  any   time  not   exceeding   three  months. S.    18.  Nothing  in  this  a6t 

extends  to  Scotland. 

5.     The  following  important  remark  concerning  the  afore-mentioned  flatute 

26  Geo.  2.  is  taken  from  the  London  Magazine  for  Auguft  1753. In  this 

aft  (fays  the  author  of  the  fummary  of  the  proceedings  in  parliament)  there 
was  a  very  material  claufe  left  out,  which  was  in  the  bill  as  it  was  firft  brought 
in ;  for  when  a  fliip  is  flranded  and  plundered  by  the  people  upon  the  coaft, 
the  great  difficulty  is  to  difcover  xvho  are  the  criminals :  the  poor  feamen  being 
quite  flrangers,  perhaps  foreigners,  know  none  of  them,  and  tlie  whole 
neighbourhood  being  concerned  as  accomplices  in  the  crime,  take  care  to 
conceal  one  another ;  therefore  in  the  bill  as  firft  brought  in  there  was,  and 
flill  is  in  the  aft,  a  claufe  for  "  obliging  the  clerk  of  the  peace  of  the  county 
where  the  crime  was  committed,  upon  delivering  to  him  an  information  or 
examination   upon  oath  before   a  proper  magiflrate,   that  fuch  crime   was 

committed 


1 


SALVAGE.  453 

committed  within  his  county,  to  caufe  the  offender  or  offenders  to  be  forth- 
with profecuted  for  the  fame  at  the  expence  of  the  county :" — but  as  the 
informer,  in  fuch  cafe  can  very  rarely  give  the  name  of  any  fuch  offender 
and  as  the  clerk  of  the  peace  may  eafily,  and  probably  will  anfwer,  tha  the 
cannot  difcover  any  of  the  offenders,  therefore  in  the  bill,  as  it  was  firfl 
brought  in,  there  was  another  claufe,  by  which  it  was  propofed  to  be  enafted, 
"  That  in  cafe  any  of  his  majefty's  fubjefts,  or  others,  fhould  be  injured  by 
the  lofs  or  fpoil  of  his  fhip,  as  aforefaid,  to  the  value  of  or 

upwards,  and  no  perfon  in  the  county  where  it  happened  fhould  be 
profecuted  and  convicted  thereupon  within  after  notice  given 

thereof  to  the  clerk  of  the  peace,  or  his  deputy,  by  delivering  the  examination 
in  writing  of  the  faft,  taken  upon  oath  as  aforefaid,  then  it  fliould  be  lawful  for 
any  fuch  proprietor  to  fue  fuch  county  for  the  damage  fo  fuflained,  bv  aftion 
at  law  againft  the  clerk  of  the  peace  of  the  county  Avhere  any  fuch  faft  fhould 
be  committed  ;  provided  that  fuch  aftion  fhould  not  be  for  more  than 
for  the  county  to  anfwer  or  pay,  with  refpeft  to  any  one  fhip,  and  the  cargo 
and  provifion  thereof;  and  that  fuch  action  fiiould  be  brought  within 
next  after  the  fame  fhould  accrue  ;  and  that  every  fuch  a6lion 
fhould  be  laid  in  fome  county  next  adjoining  to  the  county  where  fuch  fa6l 
Ihould  be  committed,  &c." — This  claufe  would  have  rendered  the  aft  effedual, 
and  would  probably  have  put  an  end  to  the  inhuman  practice  of  plundering 
fliipwrecked  merchants  and  mariners :  but  private  intereft  often  gets  the 
better  of  public  utility:  the  claufe  was  left  out  of  the  bill. 

6.  Case. — Trover  for  goods  :  the  defendants  plead,  that  they  were  in  a 
fliip,  and  that  the  fhip  took  fire,  and  that  they  hazarded  their  lives  to  fave 
them  ;  and  therefore  they  are  ready  to  deliver  the  goods,  if  the  plaintiff  will 
pay  them  46I.  for  falvage,  &c, :— the  plaintiff  demurred  generally  :  and  Holt, 
C.  J.  held,  that  they  inight  retain  the  goods  until  payment,  as  well  as  a 
taylor,  or  an  hoftler,  or  common  carrier ;  and  falvage  is  allowed  by  all 
nations,  it  being  reafonable  that  a  man  fhall  be  rewarded  M'ho  hazards  his 
life  in  the  fcrvice  of  another  ;  but  though  the  detainer  be  lawful,  yet  it  does  not 
amount  to  a  converfion. — Raym.  393.  Mich.   10  Will.  3. — Hartford  \.  Jones. 

y.  Case. — In  an  aftion  on  a  policy  of  infurance,  for  infuring  goods  on 
the  fliip  A.  the  plaintiff"  declared,  that  the  fhip  fprung  a  leak,  and  funk  in 
the  river,  whereby  the  goods  were  fpoiled ;  and  the  evidence  was,  that  many 
of  the  goods  were  fpoiled,  but  fome  were  faved  ;  and  the  queffion  was, 
whether  the  plaintiffs   might  give  in  evidence  the  expences  of  falvage,  that 

not  being  particularly  laid  as  a  breach  of  the  policy  in  the  declaration. ~ 

Lord  Hardwicke :  I  think  they  may  give  it  in  evidence,  for  the  infurance  is 
againfl  all  accidents :  the  accident  laid  in  this  declaration  is,  that  the  fhip 
funk  in  the  river ;  it  goes  on  and  fays,  that  by  reafon  thereof  the  goods 
were  fpoiled  ;  that  is  the  on\y  fpecial  damage  laid  ;  yet  it  is  but  the  common 
cafe  of  a  declaration  that  lays  fpecial  damage,  where  the  plaintiff  may  give 
evidence  of  any  damage  that  is  within  his  caufe  of  a6iion  as  laid  ;    and 

6  E  though 


494  SALVAGE. 

tliouoh  it  was  objefted  that  fuch  a  breach  of  the  policy  (liould  be  laid,  as 
the  infurer  may  have  notice  to  defend  it ;  it  is  fo  in  this  cafe,  for  they  have 
laid  the  accident,  which  is  fufficient  notice,  becaufe  it  mufl  neceffarily  follow, 
that  fome  damage  did  happen. — Cafes  Temp.  Lord  Hard~ivickc,  334.  Trin. 
9  Geo.  2. — Cary  v.  King. 

8.  Case. — A  procefs  was  awarded  by  the  admiralty,  at  the  fuit  of  the 
mailer  againft  the  owners,  to  arrefl  the  goods  at  Briilol,  on  account  of 
falvage  ;  and  now  before  appearance,  the  court  was  moved  for  a  prohibition 
on  affidavits  of  the  matter  on  the  procefs  before  the  libel,  whereby  it  appeared 
the  goods  landed  were  "  arrelled  on  account  of  falvage ;"  and  Sands's  cafe 
was  cited,  where  on  a  procefs  to  ftay  a  (hip  in  the  river,  a  prohibition  was 
granted  before  appearance. — Per  curiam  :  though  the  goods  be  now  arrefted 
at  land,  yet  the  falvage  which  was  the  caufe  of  that  arrefl,  might  be  at  fea, 
which  will  appear  by  the  libel;  therefore  we  will  not  grant  a  prohibition 
before  appearance,  or  libel  to  try  the  validity  of  their  procefs ;  the  rather, 
becaufe  the  party  may  have  another  remedy  by  action  of  trefpafs  or  replevin ; 
and  this  is  not  like  Sands's  cafe,  for  that  procefs  was  not  for  an  appearance, 
as  this  is,  but  in  the  nature  of  an  execution. —  1  SalL  35.  2  Raym.  931, 
6  Mod.  Rep.  11.  Mich.  2  Ann. — Tranter  v.  Waffon. 

9.  Case. — This  was  an  aclion  on  the  cafe  for  200I.  upon  an  indebitatus 
affumpfit,  for  fo  much  money  had  and  received  to  the  ufe  of  the  plaintiff: 
non  affumpfit  was  pleaded ;  and  iffue  joined :  it  was  brought  by  an  infurer 
againfl  an  infured,  to  recover  back  what  he  had  paid  him :  the  caufe  was 
tried  before  Lord  Mansfield  at  Guildhall,  at  the  fittings  after  lafl  Trinity 
term  :  when  it  was  agreed  that  a  verdift  fhould  be  given  for  the  plaintiff 
(with  damages  104I.  cofls  40s.)  fubje6l  to  the  opinion  of  this  court,  upon  the 
following  fafts  : — the  infurance  was  upon  any  of  the  packet-boats  that  fliould 
fail  from  Lifbon  to  Falmouth,  or  fuch  other  port  in  England,  as  his  majefly 
fhould  dire6l  his  packets  appointed  between  Lifbon  and  England,  for  one 
whole  year,  from  the  ill  of  Oftober  1763,  to  the  ifl  of  Oclober  1764 
inclufive,  upon  any  kind  of  goods,  &c.  valued  at  the  fum  injured  on  fuch 
packet-boat,  zoithout  further  proof  of  inter  ejl  than  the  policy;  and  to  make 
no  return  of  premium  for  want  of  intereft,  being  on  bullion  or  goods  :   the 

confideration  paid  was  lol.  per  cent. The  defendant,   Mr.  Michael  Firth, 

who  was  one  of  the  infured,  had  an  intereft  in  bullion  on  board  the  Hanover 
packet,  being  one  of  the  king's  packets:  on  the  2d  of  December  1763,  it 
was  totally  loll  off  Falmouth,  in  a  voyage  between  Lifbon  and  Falmouth : 
and  the  lofs  was  adjufled,  in  writing  under  the  policy,  in  the  words  following ; 
— "  adjufled  a  lofs  on  this  policy  at  lool.  per  cent,  the  Hanover  packet, 
Capt.  Sherborn,  being  totally  loft  at  Falmouth: — fhould  any  falvage 
hereafter  be  recovered,  the  infured  promifes  to  refund  to  the  infurers  M-hat- 
ever  he  may  fo  recover,  in  fuch  proportion  as  the  fum  infured  bears  with  tlie 
whole  intereft :  London  the  23d  of  O6lober  1764  ;  figned  for  Richard  Seward, 
Michael  Firth." — And  the  faft  feems  clearly  to  have  been   (though  the  cafe 

does 


SALVAGE.  495 

does  not  ftate  it)  that  the  infurer  paid  the  whole  money  infured :  indeed, 
this  very  aftion  fhews  that  he  niufl;  have  paid  it :  becaufe  the  end  and 
intention  of  the  prefent  fuit  is  to  obHge  the  defendant  to  refund  it,  as  havino- 
received  it  without  a  jufl  right  to  do  fo. — In  April  1765,  the  iron- 
trunk  which  contained  all  the  bullion  was  fiflied  up :  and  thereby  all  the 
bullion  recovered,  without  any  lofs  or  prejudice  whatever;  and  delivered  to 
the  defendant:  the  defendant's  expences  of  falvage  amounted  to  63I.  8s.  2d.: 
and,  deduding  that  fum  for  falvage,  the  net  proportion  of  his  fliare  came  to 
206I.  lis.  gd. :  the  plaintiffs  proportion  thereof,  in  refpecl  of  his  fubfcrip- 
tion,  amounted  to  48I.  4s.  which  was  paid  into  court : — the  queftion  was, 
"  Whether  the  plaintiff,   upon  this  cafe,   was  not  entitled  to  recover  in  this 

aftion  ?" Mr.  Mellilh,   on  the  behalf  of  the  plaintiff",  the  infurer,  argued, 

iff.   that  the  contraft  was  performed;  and  that  the  lofs  cannot  be  confidered 
as  a  total,  but  as  an  average  lofs :  2dly.  that  the  fpecial  agreement  "  to  allow 
the  infurer  in  the  proportion  of  the  fum  infured  to  the  whole  intereft,"   made 
no  difference  :    in  fupport  of  the  firfl.  pofition,   he  cited  the  cafe  of  Hamelton 
V.  Mendes :    the  infurance  is  on  the  fafe  delivery  of  the  bullion,    according 
to  the  real  and  true  fpirit  of  it :    it  is  not  an  infurance  upon  the  fhip  :    neither 
is  it  a  wagering  policy,   nor  a  cover  of  a  wager  ;    the  money  was  paid  on  a 
fuppofition  of  a  total  lofs  ;   but  this  was  not  a  total  lofs :    to  prove  which,  he 
cited   Bynkerfioek's  quaf.  jur.  publ.   c,  7.   and  Fitzgerald  v.   Pole,  in  the 
houfe   of  lords  in  1754:    fo  here,   it  could  not   be   confidered   as  a  total 
lofs,  for,   the  fpes  recuperandi  was  not  gone  :  here  was  an  aftual  falvage  ;  it 
cannot  be  an  average  lofs,    for  all  was  faved ;   therefore  the  contract  was 
performed  ;  and  confequently  we  ought  to  receive  the  money  back :  fecondly, 
this  contraft  was  not  altered  by  the  adjuftment  and  agreement  "  to  refund  to 
the  infurers  whatever  might  be  recovered,   in  the  proportion  of  the  fum 
infured  to  the  whole  infured :"  but  this  falvage  muft  be  eflimated  according 
to  the  value  inferted  in  the  policy  ;    Lexois  and  another  v.  Rucker :   in  that 
cafe,   the  like  proportion  at  which  the  fugars  were  valued  in  the  policy,  was 
paid,  as  the  price  of  the  damaged  fugars  bore  to  found  fugars,   at  the  port  of 
delivery  :    therefore  as  the  whole  is  received,   the  whole  of  the  value  muft 
be  refunded ;    for  this   is    merely  the  cafe  of  a  falvage. — ^ — Mr.    Wallace, 
contra,  for  the  defendant,   argued  that  he  could  not  be  compelled  to  refund  : 
the  money  was  paid  bona  fide,   and  under  a  full  apprehenfion  of  the  fatt ; 
and  it  did  not  exceed  the  lofs  at  the  value  fixed  by  the  policy :    it  was  a 
total  lofs :    if  the  goods  are  recovered,   they  are  the  infurer's ;    and  he  may 
make  what  he  can  of  them :   the  recovery  of  them  may  happen  at  a  vaft 
diftance  of  time  :    Roccius,    204,  is  in  point,   "  that  it  is  in  the  elcElion  of  die 
infured  :"   otherwife,  the  infurer  might  profit ;   which  he  ought  not  to  do : 
fecondly,  upon  \hc  fpecial  agreement ;   it  was  adjufted,   "  that  if  any  falvage 
fliould  be  afterwards  recovered,   the  infured  fhould  refund  to  the  infurers 
whatever  he  might  fo  recover,   in  fuch  proportion  as  the  fum  infured  bore  to 
the  whole  intereft :"   and  we  have  paid  the  money  in  that  proportion,  into 
court :   the  change  of  property  does  not  take  place  between  the  infurer  and 
infured :   in  the  cafe  of  Fitzgerald  v.  Pole,  the  infurer  was  not  liable  under 

that 


496  S        A        L        V        A        G        E. 

that  policy  :  the  being  a  valued  policy  refers  only  to  a  total  lofs :   it  does  not 
afFeft  the  cafe  of  an  average  lofs  :  this  is  a  mere  wagering  policy  ;  and  therefore 

the  lofs  having  happened,  the  whole  is   to  be   paid  by  the  infurcr. Mr. 

Mcllifh,  in  reply:  this  is  not  a  wagering  policy :  it  is  a  valued  policy ;  and  the  lofs 
is  only  an  average  lofs :  as  to  a  limited  time  for  the  recovery,  it  is  not  till  after 
the  Jpes  reciiperandi  is  gone  ;  here  it  clearly  was  not  gone  :  as  to  Roccius, 
204,  the  infured  has  made  his  eleftion  ;  for  he  took  the  bullion  from  the 
bank :  as  to  the  point  of  it's  being  a  wagering  policy  ;  'tis  within  the  words 
of  19  Geo.  2.  c.  37.  therefore  they  ought  to  fliew  that  they  are  within  the 
exception;  but  it  is  not  within  either  the  words  or  meaning  of  the  exception; 
the  words  of  the  flatute  are  "  goods  and  merchandifes  ;"  and  there  never  was 
a  wagering  policy  without  the  words  "  free  of  average,  and  without  benefit 
of  falvage  :"  the  flatute  prohibits  afl'uring,  "  interefl  or  no  interefl; ;"  but  here 
was  an  interefl :  the  bullion  was  undoubtedly  an  interefl ;  and  a  real  advan- 
tage might  accrue  to  the  public,  by  bringing  in  bullion ;  whereas  a  mere 
zvager  is  no  benefit  to  the  public  ;  therefore  the  exception  mufl  be  retrained 
to  fuch  cafes  as  the  public  can  receive  no  benefit  from,  but  may  rather  receive 

a  prejudice, The  court  agreed  that  this  was  a  policy  of  a  peculiar  fort ;  and 

within  the  exception  of  the  flatute  of  19  Geo.  2.   c.  37:    it  is  a  mixed  policy, 

partly  a  wager-policy,  partly  an  open  one  ;   and  it  is  a  valued  policy,  and  fairly 

fo,  without  fraud  or  mifreprefentation  :  therefore  the  lofs  having  happened,  the 

infured  is  entitled  as  {ox s.  total  lofs:    the  infurer  agreed  to  the  value,  and  is 

con  eluded  to  difpute  it ;  the  infured  received  the  money  as  for  a  total  lofs ;  and 

there  is  no  want  of  confcience  in  retaining  it:  the  cafes  o^  Lewis  and  another  v, 

Rucker,  Hameltonv.  Mcndes,  and  Gofs  and  another  v.  Withers,  were  only  "that 

where  the  average-lofs  appears  before  adjuflment,    the  underwriter  fnall  pay 

only  the  real  damage  :"   and  the  reafon  is,  that  the  infured  mufl  fliew  the  whole 

cafe,  as  it  then  flood :  in  the  prefent  cafe,  there  was  a  total  lofs  at  the  time  of  tlie 

adjuflment;  the  adjuflment  in  this  cafe  makes  an  end  of  the  queflion  ;  here  is  a 

folemn  abandonment,  and  a  folemn  agreement  "  that  the  infurers  fliall  be  content 

with  falvage  in  fuch  proportion  as  the  fum  infured  bears  to  the  whole  interefl  \' 

there  was  a  total  lofs  at  the  time  of  the  adjuflment    (which  is  the  fame  as  if  the 

damages  had  been  ^A^n recovered  onanaftion);  here  is  no  fort  of  fraud;  nor 

any  thing  that  is  againfl  any  law;    and  to  refund  more  than  in  that  proportion 

would  be  contrary  to  the   underwriter's   own  agreement : — therefore  the  net 

proportion  only,    in  refpeft  to  the  plaintiff's  fubfcription,    after  deduclion  of 

falvage,  ought  to  be  returned  to  him ;    and  that  is  paid  into  court. — Per  cur. 

unanimoufly,   the  poflea  to  be  delivered  to  the  defendant. N.  B,    This 

fort  of  policy  was  agreed  not  to  be  novel  in  praElice ;  though  new  in 
Weflminfler-Hall ;  no  fuch  having  come  into  queflion  there. —  4  Burr.—' 
Da  Cofta  v.  Firth. 

10.  Case. — A  Spanifh  fhip,  called  the  Santander  y  los  Santos  Martres, 
Capt.  Jofeph  de  Llano,  bound  from  London  for  Cadiz,  was  taken  about 
the  end  of  November  1778  by  an  American  privateer,  and  carried  into 
Newbury  Port   in  New-England  :    a  very  valuable   cargo,  confifling  chiefly 

of 


S        A        L        V        A        Ci        E.  4^7 

'of  woollen  goods,  had  been  (hipped  by  fundry  perfons  for  Spanifh  account, 
and  infured  in  London  ;  but  was  condemned  under  the  idea  of  it's  beinsr 
Britifh  property:  the  firft  intelligence  of  the  capture  and  condemnation 
arrived  in  London  by  way  of  Spain,  in  July  1779,  by  letters  from  the  captain 
dated  in  BoRon  the  24th  and  30th  of  April  1779  to  his  owners,  advifing 
that  "  he  had  appealed  from  the  fentence  to  the  congrefs  ;  that  the  cargo 
had  fuftered  by  bad  weather,  and  had  befides  been  plundered  and  unpacked,  fo 
that  if  reftored  it  would  not  be  proper  to  bring  it  home  ;  that  he  had  therefore 
entered  into  an  agreement  with  the  captors  (of  which  he  fent  a  copy)  that 
the  fuit  fhould  be  continued  at  the  joint  expence  of  him  and  them  till  ended  ; 
and  that,  if  he  gained  the  caufe  and  obtained  reftitution,  they  fhould  make  good 
to  him  by  bills  at  fix  months,  on  the  agents  of  the  congrefs  in  Spain,  the  full 
value  of  the  cargo  with  6  per  cent,  profit  thereon,  without  regard  to  the 
damage,  and  alfo  pay  him  double  freight,  together  with  his  cofls  of  fuit :  to 
which  terms  the  captors  confented  the  more  readily,  there  being  then  a  great 
want  of  clothing  for  the  American  army,  for  which  purpofc  they  fpcedily 
fold  it,  at  a  profit  of  about  20,oool. :  that  the  fliip  was  releafed  and  fent  to 
Spain,  and  in  the  mean  time  the  principal  perfons  in  Bofton  were  become 
fecurities  to  him  for  the  due  performance  of  the  faid  agreement  to  the  amount 
of  6o,oool/' — Soon  afterwards  the  captain  advifed  his  having  fucceeded  in 
obtaining  a  reverfal  of  the  fentence  of  condemnation  ;  in  confequence  of 
which  the  infurers  (myfelf  being  one  of  them)  were  made  to  underftand  that, 
by  means  of  the  faid  advantageous  agreement  (made  and  executed,  as  they 
fuppofed,  by  the  captain  on  the  behalf,  and  for  the  benefit  of  the  proprietors 
of  the  cargo)  they  would  remain  entirely  free  from  lofs : — but  hofiilities 
having  commenced,  and  all  trade  and  commerce  ceafed,  between  Great- 
Britain  and  Spain,  fince  the  capture  of  the  faid  Ihip  and  cargo  ;  and  the 
faclors  in  London  of  the  Spanifh  proprietors  of  the  cargo  not  having  been 
reimburfed  by  them  for  the  purchafe  thereof,  nor  received  from  them  any 
fatisfaftory  account,  whether  the  affair  had  been  finally  fettled  in  Spain,  or 
what  further  courfe  it  had  taken,  or  whether  the  faid  proprietors  had  or  had 
not  received  or  been  indemnified  for  all  or  any  part  of  the  value,  &c.  of 
the  faid  cargo,  according  to  the  afore-mentioned  agreement ;  therefore  the 
faid  faftors,  the  plaintiffs,  on  the  26th  of  January  1780,  and  not  before,  gave 
a  formal  notice  of  abandonment,  to  the  infurers,  demanded  a  total  lofs,  and 
brought  actions  againfi;  them  for  the  fame : — the  defendants  had  offered  to 
pay  or  depofit  50  or  60  per  cent,  if  the  plaintiffs  would  give  proper  fccurity 
to  render  fatisfaftory  accounts  of  what  had  been  done  with  refpeft  to  the 
caro-o,  and  alfo  to  reft^ore  the  money  in  whole  or  in  part  as  fhould  thereafter 
appear  to  be  right:  but  this  offer  was  not  accepted,  and  the  plaintiffs  proceeded 

to  trial,  when  all  the  before-mentioned  fatls  were  eftablifhcd. Mr.  Wallace, 

for  the  plaintiffs,  contended  in  favour  of  the  abandonment,  and  for  the 
recovery  of  a  total  lofs  ;  faying,  that  they  would  hereafter  account  for  what 
might  come  to  their  hands ;  that  in  the  mean  time  the  Confulado  in  Spam 
take  the  management  of  this  fort  of  affairs  into  their  own  hands  to  fettle, 
and  pay  the  parties  interefted  :    that  the  courts  there  are  open  to  Englifli  aa 

6  F  well 


498  SALVAGE. 

well  as  Spaniards ;  that  the  fadors  are  ufually  reimburfed  for  the  coft  of 
the  goods  by  their  produce  after  arrival,  or  by  the  infurance  if  they  are  loft ; 
that  every  thing  fliould  be  done  to  enforce  the  recovery,  and  empower  the 
underwriters  to  do  fo ;    that  as   to  depofiting  the  money,  the    difficulty  is 

about   the  length  of  time   it  may    remain. Mr.  Lee,   for  the  defendants, 

argued  that  the  abandonment,  under  fuch  circumftances,  long  after  the 
captain  had  made  an  agreement  fo  very  beneficial  for  the  proprietors,  and 
for  the  value  to  go  to  Spain,  ought  not  to  be  admitted  ;  it  was  in  the  prefent 
cafe  waved  •,  it  is  highly  probable  they  are  now  in  podenion  of  all  or  the 
greater  part  of  the  value,  with  profit  and  fatisfa6lion ;  it  is  impofiible  for  the 
defendants  to  get  it  from  Spain ;  no  fuit  can  be  brought  there  againft 
Spaniards  in  time  of  war ;  therefore  the  offer  of  the  infurcrs  to  dcpofit  the 
money  in  the  bank  ought  to  have  been  accepted  ;  all  is  kept  fecret  and  filent, 
as  to  how  the  matter  ftands ;  every  fubjeft  of  Great-Britain,  in  Spain,  was 
ordered  to  retire  to  the  country,  and  their  property  confifcated  :    the  defence 

is  made  on  the  perfuafion  that  the  alfureds  are  already  indemnified. Lord 

Mansfield  :  if  what  the  captain  did  was  for  the  benefit  of  the  freighters,  it 
was  fo  for  the  infurers  ;  but  this  is  a  very  particular  cafe  to  abandon  ;  'tis  an 
agreement  to  fell  in  America  with  profit ;  fuch  a  cafe  has  never  happened : 
if  'tis  not  an  abandonment  you  muft  give  an  account  as  an  average  lofs ; 
you  muft  effeftuate  to  the  infurers  the  benefit  you  receive  ;  you  muft  not 
fend  the  money  to  Spain,  and  have  no  fecurity  here  :  abandonment  depends 
on  a  variety  of  circumftances  :  if  you  cannot  inveft  the  underwriters  with 
power  to  aft  in  America,  you  muft  effeftuallyy^cz^r^  xhefalvage  :  they  have 
no  recourfe  in  Spain  :    their  propofal  to  pay  the  money  into  the  bank  is  very 

reafonable  ;    and   it  is  every  one's  intereft  to  get   it  out  from  thence. 

Accordingly,  a  verdift  was  given  for  the  plaintiffs  in  feveral  caufes  that  were 
depending,  fubjeft  to  the  following  rule  of  court ;  viz. — "  Ordered  by  the 
rule,  that  the  money  recovered  by  the  verdift  be  laid  out  in  the  purchafe  of 
3  per  cent,  confolidated  annuities,  in  the  names  of  A.  B.  and  C.  D.  (the 
attorneys  for  the  plaintiffs  and  defendants)  in  truft  to  pay  the  dividends  to 
Alphonfo  d'  Eguino,  until  the  parties  in  Spain  fliall  have  given  an  account 
of  the  benefit  received  by  them,  or  any  other  perfon  by  their  order  or  for 
their  ufe,  or  of  the  produce  or  refult  of  the  obligation,  or  agreement  entered 
into  by  the  captain  with  the  captors  or  otherwife,  or  ftiall  fliew  to  the 
fatisfaftion  of  the  arbitrator  herein-after-named  that  they  have  done  every 
thing,  and  ufed  every  proper  means  in  their  power  to  recover  the  fame  ; 
and  what  fliall  appear  to  have  been  fo  received  by  them  fliall  be  dedufted 
out  of  the  money  laid  out  in  the  purchafe  as  aforefaid  ;  and  the  furplus  if 
any,  or  the  whole  if  the  plaintiff  fliall  receive  nothing,  (hail  be  paid  to  the 
plaintiff^:  and  in  cafe  the  benefit  to  be  received  by  the  plaintiff  under  the 
agreement  fliall  amount  to  the  whole  fum  infured,  then  the  plaintiff  to  pay 
the  cofts  of  this  fuit  ;  otherwife  the  cofts  to  be  paid  by  the  defendant :  and 
either  party  to  be  at  liberty  to  apply  to  the  court  from  time  to  time,  as  thev 
fhall  think  proper,  for  any  direftions  concerning  the  matter  aforefaid,  or 
the  payment  of  any  partial  fum  out  of  the  faid  annuities :    and  whatever  fteps 

fliall 


V        A        G        E. 


499 


fhall  be  neccflary  to  be  taken,  in  order  to  the  afcertaining  what  has  been  or  may 
be  received  by  the  faid  obhgation  or  agreement,  is  referred  to  Mr.  T.  G. 
(one  of  the  jury) :  and,  by  the  confent  of  the  attorney  for  the  defendants,  the 
proceedings  in  all  the  other  caufes  to  be  flayed  on  payment  of  their  propor- 
tion into  the  bank,  within  fix  weeks,  and  upon  the  fame  terms,  otherwife 
judgment  to  be  figned  againfl  them/' — At  Guildhall,  fitt.  aft.  Trin.  1780. — 
Egumo  V.  Hodgfon. — Herrezuelo  &  Morphy  v. . 

11.  In  the  cafe  of  an  infurance  loft  or  not  loft,  in  the  year  1583,  there 
was  a  rich  Ihip,  called  the  St.  Peter,  coming  from  the  Eaft-Indies  for  Liftjon, 
mifting  a  long  time,  and  infurance  was  made  upon  her  at  Antwerp  and  other 
places  at  30  per  cent. :  within  three  years  after  there  arrived  at  Lift)on  a 
fmaller  fliip  very  richly  laden,  which  was  made  out  of  the  other  fhip,  which 
was  caft  alhore  on  a  certain  ifland  abroad ;  and  thereupon  divers  controverfies 
did  arife  between  the  owners  of  the  goods  and  the  affurers,  as  alfo  the  mafter 
and  mariners  : — at  laft  it  was  adjudged  by  the  fea  laws,  that  the  mafter  and 
mariners  fhould  have  one-third  part,  and  the  afllirers  fliould  come  in  for  fo 
Tcwxchpro  rata  as  they  had  aftured,  all  charges  dedu6led,  and  the  fliip  to  belong 
to  the  owners  of  the  former  ftiip,  with  the  like  confiderations  as  aforefaid. 
— Vin.  Abr.  Tit.  Policy  of  Aft^urance,  42.  cites  Gen.  Treat,  of  Trade, 
72. — Mai  Lex  Merc.   106,   108. 

12.  In  general  all  obje6lions  of  the  abfent  ftiould  give  way  to  the  opinion 
of  thofe  that  are  on  the  fpot ;  and  it  is  but  reafonable,  when  in  cafe  of 
a  Jliipioreck  it  is  agreed  by  a  majority  of  votes  among  thofe  which  reprefent 
the  proprietors  (before  a  beginning  is  made  with  the  falvage,  and  when  it  is 
uncertain  to  whom  fortune  may  be  moft  or  leaft  favourable)  that  every  thing 
which  may  be  faved  ftiall  come  into  a  common  flock ;  that  then  the  right, 
which  otherwife  every  particular  has  to  claim  his  own  property,  ceafes.— 
1  Mag.  122. 

13.  According  to  our  opinion,  it  fhould  feem  reafonable  that  the 
mafter  be  allowed  the  full  freight,  if  by  his  means,  and  thofe  of  the  crew 
alone,  the  goods  were  faved  from  a  wreck,  though  damaged :  but  if  other 
perfons  were  employed  with  them  in  the  falvage,  then  fliould  the  mafter  for 
his  freight,  and  the  men  for  their  wages,  contribute  towards  the  damage  of 
the  goods  faved,  and  the  charges  paid. — 2  Mag.  162. 

14.  In  a  fhipwreck,  part  of  the  cargo,  being  fiflied  out  of  the  fea 
and  faved,  was  delivered  to  the  owners  for  payment  of  the  falvage :  the 
proprietor  of  the  fhip  claiming  the  freight  of  the  goods  faved,  pro  rata, 
itincris,  the  freighters  admitted  the  claim,  but  infifted  that,  as  the 
falvage  was  beneficial  to  him  on  account  of  his  freight,  as  well  as  to  them 
on  account  of  their  goods,  he  ought  to  pay  a  proportion  of  the  falvage  : — • 
his  anfwcr  was  fuftaincd  to  free  him   from   any  part,   viz.  that  the  expence 

was  wholly  laid  out  on  recovering  the  freighters'  goods ;   and  therefore  tiiat 

they 


5C0 


V 


they  only  ought  to  be  liable. — The  anfwer  here  fuftauied  refolves  into  the 
following  propofition  ;  that  he  only  is  liable  whofe  benefit  is  intended  :  which 
is  certainly  not  good  in  equity  ;  for  at  that  rate,  the  bona  fide  pojejfor,  who 
in  meliorating  the  fubjeft  intends  his  own  benefit  folely,  has  no  claim  againft 
the  proprietor.  Here  the  freighters  and  the  proprietor  of  the  fliip  were 
connefted  by  a  common  intereft  :  the  recovering  the  goods  from  fliipwreck 
was  beneficial  to  both  parties ;  to  the  freighters,  becaufe  it  put  them  again 
in  polTeirion  of  their  goods  ;  and  to  the  proprietor  of  the  (hip,  becaufe  it 
gave  him  a  claim  for  freight :  the  falvage  accordingly  was  truly  in  remverfum 
of  both ;  and  for  that  reafon  ought  to  be  paid  by  both  in  proportion  to  the 
benefit  received.  This  cafe  may  be  confidered  in  a  different  light  that  will 
fcarce  admit  of  a  difpute  : — fuppofe  that  the  owners  of  the  cargo,  in  recover- 
ing their  goods  to  the  extent  of  i,oool.  have  laid  out  lool.  upon  falvage; 
they  have  in  effeft  faved  or  recovered  but  900I. ;  and  beyond  that  fum  they 
cannot  be  liable  for  the  freight :  which  in  numbers  will  bring  out  a  greater 
fum  than  what  refults  from  the  rule  above  mentioned. — Lord  Kaims'  Prin. 
of  Equ.  110. 

15.  The  mafler  fhall  be  paid  freight  for  the  goods  faved  from  a  fliip- 
wreck, rendering  diem  at  their  dellined  port. If  he  can  find  no  vellel  to 

carry  the  goods  faved,  he  fhall  be  paid  his  freight  in  proportion  as  he  fhall 

be   advanced  in   his   voyage. All   promifes   made    to   pilots    and   other 

mariners,  on  occafion  of  the  danger  of  fliipwreck,  are  declared  void. — Ordiii. 
of  France. — Guidon,  c.  5.    art.  31. 

16.  In  cafe  of  damage  or  misfortune,  the  mafler  of  the  fliip  and  his  men, 
or  likewife  any  of  the  parties  infured,  who  may  happen  to  be  prefent,  their 

,  correfpondents,  faftors,  or  fervants,  are  authorlfed  and  obliged  to  do  all  they 
can  in  behalf  and  for  the  advantage  of  thofe  who  are  abfent ;  confequently 
for  preferving  and  faving  the  fliip  and  goods,  whether  it  be  by  advancing  the 
neceffary  charges,  providing  neceflary  veffels,  or  felling  the  damaged  goods, 
rigcring,  and  the  like;  and  herein  to  ufe  all  poffible  care  and  diligence:  all 
which  the  infurers  fliall  be  bound  to  approve  of,  and,  upon  a  delivery  of  a 
jufl  inventory  of  the  goods  faved,  and  an  account  of  the  expences  incurred 
thereby,  to  reimburfe  them,  although  they  fliould  exceed  the  value  of  the 
falvage. — Or  din.  of  Koningfb. 

17.  If  an  aflurer  pays  Immediately  the  fum  he  has  underwrote,  and  will 
not  contribute  towards  the  charges  requifite  for  faving  and  recovering  the 
fhip  and  cargo,  he  is  thereby  dilcharged  from  his  obligation,  and  is  not  liable 
to  any  thing  further :  otherwife  the  affurers  are  obliged  to  make  fatisfaction 
to  the  aflured  for  all  expences  incurred  for  the  advantage  of  the  fhip,  and 
falvage  of  the  goods. — Ordin.  of  Hamb. 

18.  Although  the  mafler  has  promifed  the  people  who  helped  to  fave 
the  flilp,  &c.  the  third  or  half  part  of  what  they  faved ;    yet  if  fuch  a  caufe 

come 


SCOTLAND.  501 

come  before  any  judicature,  it  fliall  be  confidered  the  pains  and  trouble  they 
were  at,  and  the  reward  be  accordingly,  without  any  regard  to  the  promifcs 
made  in  time  of  diftrefs. — Laxvs  of  Olcron. 

ig.     If  goods  be  abandoned  to  thofe  who  fave  them,  there  can  be  no 
claim  for  falvage  ;    for  falvage  can  never  exceed  the  beneft  procured  by  it. — 

Lord  Kaims'  Prin.  of  Egu.  373. 

20.  Remarks. — In  cafes  of  falvage,  whether  from  fhipwreck,  or  byarecap- 
ture,  ranfom,  &c.  where  there  is  aj/iort  infurance,  or  an  under -valuation  in  the 
policy,  the  charges  muft  be  ftated  and  proportioned  on  the  true  value  of  the 
intereft,  as  in  cafes  of  average  lofs — (not  paid  by  the  infurers  only  ; — which  is, 
however,  very  often  and  very  erroneoufly  done) : — and  the  infured  are 
entitled  to  a  (liare  of  what  is  faved,  in  proportion  to  the  fum,  or  value  which 
is  uninfured. — If  the  fum  infured,  or  the  valuation  in  the  policy  be  equal  to, 
or  larger  than  the  true  value,  then  the  infurers  muft  bear  the  whole  charges 

■of  falvage;    being   entitled   to   all   that   is    faved. Notwithftanding   the 

do6lrine,  quoted  from  Lord  Kaims  as  above,  that  "  falvage  can  never  exceed 
the  benent  procured  by  it ;"  and  that,  in  general,  it  feems  to  be  reafonable 
that  it  oiight  not  to  exceed,  &c. ;    yet  it  is  obfervable  that,  by  feveral  foreign 
ordinances,  it  is  eftablilhed,  and  alfo  in  feveral   foreign  policies  exprefsly 
mentioned,  that  "  the  infurers  fliall  be  anfwerable  for  all  the  charges  and  the 
loffes  incurred  by  the  endeavours  to  fave,  whether  any  thing  be  faved  or  not :" 
— ^liowever,  when  it  appears  that  there  hath  been  intentional  impojition,  or 
even  remarkable  imprudence  on  the  part  of  the  falvers,  their  accounts  ought 
not  to  be  allowed  further  than  is  juft  and  equitable ;    and  this  is  provided  for 
by  the  fecond  feftion  of  the  before-recited  aft  12  Anne: — yet,  it  may  fome- 
times  happen  that,  after  effefts  have  been  faved  from  a  wreck,  ftranding,  &c. 
they  may   again   be    loft    irrecoverably ;    in   which   cafe,    the    infurers    are 
undoubtedly  anfwerable  both  for  the  charges  of  falvage   and  the   fubfequent 
lofs :  as  they  are,  in  like  manner,  when  ftiips,   &c.  have  been  again  taken, 
after  a  ranfom  or  recapture. 

21.  See  Abandonment,  Anchor,  Antwerp,  Average,  Barratry,  Bilboa, 
Bottomry,  Cadiz,  Capture,  Cincjue  Ports,  Claim,  Colony,  Contribution,  Copen-' 
hagen.  Corn,  Dijlrefs,  Evidence,  Freight,  Interejl,  Jetttfon,  PeriJJiable  Commo- 
dities.  Privateer,  Provijions,  Ranfom,  Recapture,  Reclaim,  Repair,  Reprifal, 
Re/pondentia,  Seamen,  Shipwreck,  Stockholm,  Stranding,  Total  Lofs,  Valuation, 
Wages,  Wreck. 

SCOTLAND. 

1.   T>  Y  Stat,  (of  union)  5  Anne,  c.  8.  f.  4. — All  the  fubjefts  of  the  united 
-*-^  kingdom  ftiall  have  full  freedom  of  trade  and  navigation  to  any  port 
within  the  united  kingdom,  and  the  dominions  thereunto  belonging. 

2.     See    Colony',    Navigation,   Out-Ports. 

6  G  SEA. 


[    502     ] 
S  E  A. 

i.  T)  Y  the  word  fea,  according  to  the  genuine  fignification,  is  underftood 
■'-^  the  ocean  and  main  fea,  as  well  as  gulplis  and  inland  feas,  fuch  as 
the  Mediterranean,  Adriatic,  ^gean,  Britilh,  and  Baltic  feas,  which  are  more 
immediately  fubjeft  to  dominion :  for  as  to  the  foverelgnty  of  the  vafl  ocean, 
no  man  can  pretend  to  it,  unlefs  he  were  lord  of  the  univerfe  ;  and  the 
dominion  of  every  prince  and  /late  can  extend  no  further  on  the  main  fea, 
than  wliere  it  is  reafonable  that  his  neighbours'  fliould  begin,  or  where  the 

particular  dominion  is  loft  in  the  boundlefs  deep. The  fovereignty  of  the 

Britijh  feas,  maintained  and  aflerted  to  have  always  been,  and  ftill  continues 
to  be,  the  undoubted  right  of  the  kings  and  queens  of  Great-Britain  : — thus 
the  Britifli  fea,  or  the  channel  lying  between  England  and  France,  the 
Vergivian,  the  Deucaiedonian,  and  the  Caledonian  feas,  are  properly  called 
the  Britifli  feas,  and  as  fuch,  are  fubjeft  to  the  Britifli  empire. — The  extent 
of  the  Britilh  dominions  in  the  eaftern  and  fouthern  feas  was  fettled  by  the 
treaty  concluded  in  the  year  1674,  between  king  Charles  II.  and  the  States 
General ;  by  which  it  was  to  reach  from  the  middle  point  of  the  land  Vanjlatcn 
in  Norway  to  Cape  Finijlerre. 

2.     The   dominion   of  the   fea  entitles  the  lawful   pofTcfTors  to  the   fix 

following  prerogatives,  m.r. — (1.)  The  royalty  of  granting  the  liberty  of  fiflnng 

for  pearl,  coral,  amber,  and  all  other  fuch  precious  commodities :  (2.)  to 

grant  licences  to  fifh  for  whale,  fturgeon,  pilchard,  falmon,  herring,  and  all 

other  forts  of  fifli  whatfoever,  as  is  ufifal  in  Spain,  Portugal,  and  feveral  other 

places :    (3.)   to  impofe    tribute    and   cuftom   on   ail    merchants'   fliips   and 

fifliermen,  fifliing  and  trading  within  the  limits  of  the  fea  that  is  fubjefted 

to  any  particular  dominion:  (4.)  the  regular  execution  of  juflice  for  proteft- 

ing  the  innocent,  and  punifiiing  the  guilty  for  all  crimes  committed  within 

the  extent  of  fuch  fea-dorninions :  (5.)  to  grant  free  paffage  through  any  fuch 

fea  to  any  number  of  fliips  of  war  belonging  to  any  other  prince  or  republic, 

or  to  deny  the  fame,  according  to  circumftances  and  the  occafion   of  fuch 

palTage  ;  in  the  fame  manner  as  any  prince  or  ftate  may  grant  or  deny  free 

paffage    to    foreign    troops  through   their  territories  by  land  ;    even  though 

the  prince  or  ftate,  to  whom  fuch  fiiips  or  land  forces  belong,   be  not  only 

in  peace,  but  in   alliance,  with  the  prince   or  republic   of  whom  paffage  is 

dehred  :  (6.)  to  demand  of  all  foreign  flnps  whatfoever  within  thofc  feas,  to 

ftrike  they/flo-,  and  lower  the  topfail,  \.o  zny  Jhips  of  xvar,   or  others  bearing 

the  colours  of  the  fovereign  of  fuch  feas : — all  which  prerogatives  do  unquef- 

tionably  belong  to  the  kings  and  queens  of  Great-Britain :  and  although  the 

duty  of  the  flag  is  but  an  indifferent  honorary  ceremony,  yet  it  is  a  fignifi- 

cant  acknowledgment  that  the  abfolute  fovereignty  of  the  feas  in  which  the 

colours  are  required  to  be  ftrirck,  is- vefted  in  the  prince  to  whom  that  duty 

is  paid :  and   fuch  is  the  high  regard  that  the  Britifli  nation  puts  qpon  the 

execution  of  this  ceremonious  homage,  that  a  contempt  thereof,  according  to 

the  marine  laws,  is  punirhable  by  cai)turc,   imprifonment,    and   forfeiture    oi 

fliip  and  goods. 

3.     It 


A.  ^03 


3- 


It  is  not  an  empty-  title,  which  the  kings  of  England  have  always 
taken  to  themfelves,  of  being  fupreme  lords  and  governors  of  "the  ocean 
furrounding  the  BritiPn  fhore,  but  a  right  which  they  have  conftantly  main- 
tained, at  the  expence  of  numerous  fleets:  this  due  maintenance  of  the 
fovcreignty  of  the  Briiifli  feas  has  animated  the  Englifli  nation  to  endeavour 
likewifc  to  maintain,  in  concert  with  other  allies,  a  fuperiority  of  maritime 
power  in  gencrai ;  wherjeby,  from  time  to  time,  the  balance  of  power  amongfl 
the  European  fiatcs  has  been  hitherto  preferved,  and  fince  the  revolution, 
tl:ie  protellant  intereil,  and  die  hberties  of  millions  of  people,  may  be  truly 
faid  to  owe  their  exillence  to  the  maritime  prowefs  of  thefe  kingdoms  in 
particular;  for  if  this  power  had  not  been  occafionally  exerted,  tlK  united 
maritime  power  of  all  other  Hates  and  empires  together,  could  not  have 
prevented  that  univerfal  empire  of  flavery,  that  has  been  fo  ftcadily  puifued 

by  a  neighbouring  power.- The  roar  between  the  parliament  of  England 

and  the  Itates  of  Holland,  in  the  year  1652  (the  Iharpefl:  fea  war  that  was 
ever  known  between-  any  two  nations)  was  occafioned  by  this   punftilio  of 
the  honour  of  the  ^f/^r^  which  the  Dutch  admiral.  Van  Tromp,  refufcd  to 
pay  to  our  admiral,  the  immortal  Blake  : — -in  the  reign   of  king  Charles  the 
fecond,  another   bloody  fea   war  was    commenced   between    England    and 
Holland,  on  the  fame  account,  with  this   very  particular  circumftance,  that 
the  captain  of  a  fmgle  yacht,  fent  over  to  Holland  to  bring  home  Sir  William 
Temple's  lady,  was  ordered  to  demand  this  acknowledgment  from  the  whole 
Dutch  fleet: — the  late  king  William  had  the  fame   regard  for  this  right  of 
the  honour  of  the  flag,  iind  made  it  one  of  his  reafons  for  declaring  war 
againfl   the    French    king,    as  appears    from    the    following  article    of  the 
declaration  iifelf : — "  the  right  oi  the  flag,  inhei'ent  in  ihe  crown  o^f  England, 
hath  been  difputed  by  his,  the  king  of  France's  orders,  in  violation  of  our 
fovereignty  of  the  narrozo  feas,  which  in  all  ages  hath  been  aflerted.  by  our 
predecefTcrs ;  and  we  are  refolved  to  maintain  the  honour  of  our  crown  and 

of  the  Englifli  nation." 1  fliall  conclude  thefe  inflances  with  a  pafTage  out 

of  Sir  John  Borough's  treatife  upon  this  fubjeft  ;  viz. — "  The  fovereignty  of 
our  feas  (fays  he)  being  the  moll  precious  jewel  of  liis  majcfty's  crown,  and 
next  under  God  the  principal  means  of  our  wealth  and  fafety,  all  true  Englifh 
hearts  and  hands  are  bound,  by  all  pofiible  means  and  diligence,  to  preferve 
and  maintain  the  fame,  even  with  the  uttcrmofl  hazard  of  their  lives,  their 
goods,  and  fortunes." 

4.  Some  eminent  writers,  however,  deny  this  right,  and  limit  the  domi- 
nion of  the  fea  to  the  drflance  of  two  leagues  from  the  fhore ;  or  within 
cannon  Jliot  from  the  territory  of  the  fovereign  of  the  neighbouring  coafl, 
which  they  pretend  is  now  the  rule  generally  acknowledged  : — Journal  dc  Com- 
merce, May  1759,  p.  jO. But  "  beyond  that  (fays  a  learned  French  author, 

feveral  times  quoted  in  this  work)  to  arrogate  the  empire  of  the  fea  by  force 
of  arms,  is  tyranny  ;  or  to  affume  it  as  a  right  acquired  by  ancient  ufurpation, 
is  a  fenfelefs  ambition  :  it  was  this  which  hath  caft  an  eternal  ridicule  upon 
the  maniRilo  tJiat  William,  Prince  of  Orange,    ufurpcr  of  the  throne   of 

England; 


504 


MEN. 


England,  publifhed  the  27th  of  May  1689,  when  he  declared  war  againft 
France." — 2  Valins  Comm.  688. 

Q.     See  Admiralty  &  Admiralty  Court,  Flag,  Freedom  of  Navigation, 

S       E      A      .      L      A      W      S.     . 

1.  TN  matters  of  infurance,   judgment   is  to  be  given   according  to  the 
-*-  maritime  laws  and  ordinances,  and  according  to  the  ciifloins  obfervcd 
among  fea-faring  people. — Roccus,  247.  not.  80. 

2.  See  Prelim.  Difc.  6j.  Admiralty  &  Adviiralty  Court,  Civil-Late, 
Ciijlom,  Law-Merchant  or  Lex  Mercatoria,  Maritime-Law,  Oleron,  Ordinance, 
Rhodian-Laws,  Sea,  Statutes,  U/age,  Wijbuy-Laws, 

SEAMEN. 

1.   T>  Y  Stat.  11  and  12  Will.  3.  c.  7.  f.  16. — All  officers  or  failors  who  ffiall 
-*-^  defert  the  fliips  wherein  they  are  hired  to  ferve  for  that  voyage,  fliall 
forfeit  all  wages  due  to  them. 

2.  By  Stat.  8  Geo.  1.  c.  24.  f.  6.  If  any  commander  or  other  officer,  or 
feaman,  of  a  merchant  fliip  which  carries  guns  and  arms,  (hall  not,  when  they 
are  attacked  by  any  pirate,  fight  and  endeavour  to  defend  themfelves,  or 
fhall  utter  any  words  to  difcourage  the  other  mariners,  and  by  reafon  thereof 
the  ffiip  fhall  fall  into  the  hands  of  the  pirate,  every  fuch  commander,  &c. 
fhall  forfeit  all  the  wages  due  to  him,  to  the  owners  of  the  fliip,  and  fhall  fuffer 
fix  months  imprifonment. 

3.  Should  it  happen  that  any  perfon  pretended  to  be  a  mate,  pilot,  or 
other  fea  officer,  and  was  afterwards  found  to  be  unexperienced,  and  not  to 
underftand  his  profeffion,  he  fhall  forfeit  the  firfl  time  twice  as  much  as  his 
full  xoages  amount  to,  and  fhall  not  receive  nor  demand  any  part  of  fuch 
wages  ;  the  fecond  time  incur  the  fame  penalty,  and  be  whipped  bcfides  ; 
and  the  third  time  be  corporally  puniflied  and  fined. — And  in  cafe  any 
damage  arifes  therefrom,  he  fliall  be  obliged  to  make  the  fame  good  again 
double,  let  it  happen  what  time  it  will. — Ordin.  oj  Antzo. 

4.  If  a  fhip  happens  to  be  lofl,  or  becomes  innavigable,  whether  in  thefe, 
or  in   foreign  parts,  the  fliip's   company  is  not  to  depart  without  confent  of 

the  mafter,  or  of  the   perfon   commanding  the   fhip. But  they  fhall  ufe 

their  utmofl  endeavours  to  preferve,  favc,  and  put  into  fafe  cuflody  the  fliip, 

it's  materials,  and  cargo,  as  far  as  is  poffible. Provided  always,  that  ihcy 

fliall  be  allowed  '>-fnfonable  falvage  of  the    merchants'  goods. And  for 

what 


SEASON.  505 

what  remains  of  the  zoages,  they  may  take  their  redrefs  upon  the  materials 

faved  out  of  the  fhip,  and  upon  the  freight  agreed  for. He  that  runs  away 

without  confent,  or  is  negligent  in  the  prefervation,  Jalvage,  and  depofiting 
in  fecurity  the  (liip  and  cargo,  fliall  forfeit  ten  gilders  ;  or  if  it  be  an  officer, 
fifteen  gilders,  over  and  above  the  half  of  the  wages  or  monthly  pay,  which 
he  may  have  in  arrear,  and  fhall  neverthelefs  be  obliged  to  make  fatisfaftion 
for  the  lofs  or  damage  that  may  have  been  occafioned  by  his  running  away, 
difobedience,  or  negligence. — Ordin.  of  Rott. 

5.  Ransom  from  pirates,  and  the  merchandifes  they  take  along  with 
them,  they  may  infure. — Ordin.  of  Avijt. 

6.  See  Barratry,  Contraband,  Damage,  Embezzlement,  Fraud,  Mariner, 
Negligence,  Pilot,  Piracy,  Salvage,  Shipwreck,  Wages. 


SEASON. 

1.  AS  owners,  freighters,  &c.  who  have  conftant  occafions  to  have  their 
-^— ^  property  infured,  have  alfo  opportunities  of  forefeeing  and  judging  of 
moft  of  the  favourable  and  unfavourable  circumftances,  which  are  likely  to 
attend  the  voyage  according  to  the  feafon  of  the  year  in  which  it  is  to  be 
performed ;  fo  they  often  confult  their  own  particular  interefl  in  fuch  cafes, 
by  caufing  their  infurances  to  be  made  in  the  fummer,  long  before  the  goods 
are  intended  to  be  loaded,  or  the  fhip  can  depart ;  fo  that  although  the  infured 
well  know  it  will  hea.zvinterri/c/ue,  the  infurers,  under  an  idea  of  the  contrary, 
are  induced  in  an  early  feafon  of  the  year,  to  underwrite  it  at  a  fummer 
premium. — This  is  frequently  the  cafe  in  infurances  from  the  Baltic  and 
other  northern  latitudes,  tlie  policies  being  fometimes  underwritten  even 
before  the  fhip's  departure  from  England,  in  the  fummer  months  (efpecially 
from  the  out-ports  J  and  when  there  is  a  moral  certainty  that  fhe  cannot  fail 
from  Archangel,  Peterfburgh,  &c.  till  the  winter  is  far  advanced. — I  fhall  not 
here  prefume  to  decide  the  queflion  which,  fliould  a  lofs  happen,  would 
naturally  arife  in  this  cafe  of  deception  (for  fuch  it  undoubtedly  is)  viz. 
"  Whether  fuch  an  infurance  at  a  premium  of  1^  per  cent,  ought  to  hold 
good,  when  the  infured  knew  that  the  fhip  could  not  fail  till  a  feafon  when 
the  known  current  and  cuftomary  premium  is  5  per  cent.  ?" — I  fliall  only 
recommend,  in  order  to  prevent  altercations  thereupon,  that  the  infured  do 
always  candidly  communicate  what  they  expeft,  or  at  leaft  what  they  may 
really  know,  as  to  the  time  of  the  fhip's  departure  ;  and  that  the  infurers  be 
attentive  to  make  the  needful  enquiries  in  this  refpeft. 

2.  Malynes  fays,  this  queflion  is  worthy  of  confideration,  for  the  time 
makes  great  difference  in  the  aflurance  :  goods  laden  in  fummer  are  not  in 
iiidventure  comparable  to  the  winter,  when  florms  and  tempefls  do  arife ;  and 
therefore  are  not  the.alfurers  to  be  made  anfwerable  to  this  affurance  :  for  the 

6  H  cnjiom 


5o5  S      E      A      -      W      O      R      T      H      Y. 

cujlom  herein  is  clear,  and  concurring  with  the  law  of  Oleron  ;    and  therefore 
not  comprifed  in  the  tenor  of  the  policies  of  afTurance. — Lex  Merc.  118. 

3.  When  the  proprietor  of  the  goods,  or  fhip,  has  faid  the  fhip  would 
be  ready  to  fail  at  a  feafon  not  dangerous  for  navigation,  and  the  infurer 
for  that  reafon  has  more  readily  agreed  to  the  infurance,  if,  afterwards  the 
owner  of  the  fhip  or  goods,  fhould  defer  her  departure  to  an  unfavourable 
feafon,  for  inflance,  to  the  month  of  December,  when  the  fea  becomes 
tempeftuous,  and  the  veffel  and  goods  fliould  be  loft,  the  infurer  is  not  liable 
to  any  demand  ;  as  he  that  does  not  put  to  fea  in  due  time,  fails  afterwards 
at  his  own  rifque. — "When  mafters  of  (hips,  therefore,  and  thofe  concerned 
in  navigating  them,  are  detained  in  port  by  wine  and  women,  and  without 
aftigning  any  juft  caufe,  they  fail  afterwards  at  their  own  peril,  and  are  bound 
to  make  good  both  ftiip  and  cargo  to  their  proprietors. — Roccus,  188.  not.  38. 

4.  Insurance  fiiall  not  be  made  on  the  fliip's  hull,  or  goods,  before  the 
fliip  fliall  lie  at  the  place  from  whence  one  caufes  himfelf  to  be  infured, 
without  fpecially  exprefling  in  the  policy  that  the  fhip  was  not  yet  there 
arrived,  on  pain  of  nullity. — Or  din.  of  Arrtjl. 

5.  If  a  fhip  or  goods  be  delayed  in  the  loading  port  beyond  the  time 
mentioned  in  the  policy,  fo  that  it  does  not  depart  till  a  later  feafon  of  the 
year,  when  the  dangers  of  the  fea  are  greater,  the  infured  is  of  this  to  inform 
the  infurer,  who  as  he  runs  a  greater  hazard  is  entitled  to  fuch  an  addition 
to  the  firft  premium,  as  was  current  at  the  time  of  the  fhip's  departure. 
— Or  din.  of  Stockh. 

6.  See  Concealment,  Date,  Departure,  Infured,  Intelligence,  Out-Ports^ 
Premium,  Rifque,  Ship  or  Ships,  Time,  Touching,  Whale- Fijhery. 


SEA-WORTHY. 

1,  'T^HE  doftrine  of  fea-worthinefs,  that  is,  that  "every  fhip  infured 
-*-  muft  be  able  to  perform  the  voyage,  unlefs  fome  external  accident 
fhould  happen,"  has  been  fo  fully  difcuffed,  under  title,  Infufficiejicy ,  par- 
ticularly in  the  remarkable  cafe  of  the  Mills  Frigat,  p.  281.  that  it  is  the 
lefs  needful  to  enlarge  upon  the  fubjeft  in  this  place : — therefore  what  follows 
may  be  confidered  as  fupplemental  to  what  is  inferted  under  the  afore- 
mentioned head. 

2.     Even  admitting  fea-worthinefs  to  be  a  general  principle  of  law,  it  will 

ftill  deferve  to  be  enquired,   "  What  fhall  determine  a  fhip  to  be  capable  ?" — 

is  it  any  examination  or  furvey  which  fhall  be  made  before  the  fhip  begins 

the  voyage  ?   if  the  furveyors  pronounce  her  to  be  fit,  is  the  law  to  deem  her 

fo  ?   or  is  this  to  be  determined  by  the  event  ?   and  if  a  fhip  thus  examined 

and 


\ 


i 


S    E    A    .    W    O    R    T    H    Y.  507 

and  approved  of  comes  home  fafe,  is  the  premium  to  be  held  ?  if  fhe  be  loft, 
the  fum  infured  not  to  be  recovered  ?— It  is  prefumed,  that  whoever  ftiictly 
purfues  thefe  enquiries,  will  be  convinced  that,  on  this  principle,  it  is  im- 
pofhble  to  draw  any  juft  line  which  fhall  infallibly  divide  the  cafes,  recoverahlf. 
and  not  recoverable;  and  which  will  not  open  a  wide  field  to  cavils  and 
litigations :  and  if  the  cuftom  and  ufage  of  merchants  cannot  be  admitted  to 
operate  in  thefe  inftances,  as  in  reafon  and  equity  it  often  does  and  ought 
to  do,  againft  the  feverity  of  certain  points  of  law,  innumerable  mifchiefs 
and  hardfliips  will  fall  on  merchants  in  general,  and  owners  of  (liiD;  in 
particular. — Printed  Cafe  of  the  Mills  Frigat. 

3.  The  principle  of  fea-worthlnefs  in  regard  to  a  fliip  (as  contended  for 
by  the  defendant's  counfel,  in  the  cafe  of  the  Mills  Frigat)  can  never  be 
injurious  to  the  honeft  merchant,  but  will  rather  excite  the  neccHary  care, 
that  no  fliips  be  put  up  for  freight,  but  fuch  as  are  in  fact  capable  of 
performing  the  voyage,  and  preferving  his  property :  wherefore  it  is  advife- 
able,  that  when  a  perfon  is  poffeffed  of  a  veffel,  and  puts  in  a  mafter,  in 
whom  he  confides,  &c.  he  conilder,  that  the  captain  is  his  agent :  that  his 
mere  orders  to  ufe  his  beft  endeavours,  and  fpare  no  expences  to  put  the  fhip 
in  a  proper  condition  for  failing,  will  not  fcreen  her  from  the  natural  decay 
which  will  of  courfe  happen,  and  is  out  of  the  captain's  power  to  prevent ; — ' 
fuch  as  the  impolTibility  of  iron  bolts  keeping  timber  together,  either  in  rough 
or  fmooth  waters,  longer  than  a  certain  time,  &c. : — ^liowever  willing  the 
captain  may  be  to  think  right,  and  do  every  thing  that  is  in  his  conception 
neceffary,  yet  the  law  and  juries  are  open  to  examine  and  judge  of  his 
conduft,  which  examination  implies  no  imputation  of  fraud  on  either  owner 
or  captain ;  and  if  it  is  found  that  the  captain  attempted  to  work  miracles'j 
that  is,  "to  fit  out  for  fca  a  fliip  which  ought  to  be  broke  up,"   the  failure 

muft  revert  upon  the  owners. The  do6lrine  of  fea-worthinefs  of  a  fnip  is  a 

moft  important  matter:  it  is  not  only  a  check  againft  the  frauds  of  dilhoneft 
men  in  regard  to  property,  but  it  preferves  the  lives  of  many  ufcful  members 
of  fociety,  and  faves  families  from  the  utmoft  affliftion  and  mifery  ;  the 
aflureds'  mere  opinion  of  the  fuflBciency  of  a  fliip  will  not  always  do:  defcEls 
and  negleEls  muft  both  be  anfwered  for  in  particular  cafes,  although  both  may 
be  equally  unknozon  to  the  alfured  :    there  is  a  great  deal  of  difference  between 

accidental,  trifling  defects  or  neglefts,  and  capital  ones. With  regard  to 

owners  of  fliips  being  refponflble  for  cargoes,  it  feems  not  improper  that  they 
fhould,  in  particular  cafes,  be  anfwerable  to  freighters,  for  the  amount  of  the 
goods  received  on  board  very  bad  fliips :  for  example,  fuppofe  a  fliip  with  fuch 
a  wretched  bottom,  that  a  hogfliead  of  fugar  or  a  block  of  tin  plumps  through 
it  all  at  once,  unobferved  by  the  captain,  and  yet  the  fliip  might  be  laved  ;  in 
this  cafe  the  owners  of  the  fiiip  would  unqueflionably  be  anfwerable  for  the 
hogfliead  of  fugar  or  block  of  tin  loft. — Anfwer  to  the  printed  cafe  of  the 
Mills  Frigat. 

4.  If  the  merchant  proves  that,  when  the  fliip  failed,  it  was  incapable  to 
navigate,  the  mafter  fhall  lofe  his  freight,   and  anfwer  for  the  damages  and 

in tc re ft 


,-o8  SEIZURE. 


Lt 


intereft  to  the  merchant. The  lofs,  diminution,  or  wafte,  that  may  happen 

from  the  periihable  quality  of  any  thing  fliall  not  fall  on  the  infurers. — Ordin. 
oj  France. 

g.  By  the  nature  of  the  contra6l  of  affreightment  the  mafter  is  neceffarily 
held  to  warrant  his  (hip  to  be  good,  and  perfeftly  in  condition  to  perform 
the  voyage,  under  pain  of  all  charges,  damages,  and  interefts. — 0.  Weytfens 
Treatije  of  Averages,   lo. 

6.  In  fuch  cafe,  the  infurers  are  free  from  any  demand  on  the  part  of  the 
infured:  the  guaranty  of  the  owner  of  the  fliip  would  be  juft  the  fame, 
although  the  (hip  before  the  departure  fhould  have  been  furveyed  and  judged 
in  a  condition  to  perform  the  voyage,  as  foon  as  by  the  event  it  fhould  be 
verified  that  through  latent  deJeEls  flie  was  no  longer  navigable :  that  is,  if  it 
was  afcertained  that  fome  parts  of  her  were  fo  rotten,  broken,  or  fpoiled,  as 
that  (he  was  really  incapable  of  refilling  the  common  accidents  of  winds  and 
feas,  unavoidable  in  every  navigation  :  the  reafon  is,  that  the  furvey  of  the 
fhip  at  her  departure  regards  only  the  external  parts,  becaufe  flie  is  not 
unripped,  fo  that  the  interior  and  hidden  defefts  are  not  difcovered  ;  for 
which,  confequently,  the  owner  or  the  mafter  remains  always  anfwerable,  and 
that  with  the  more  jufticeas  they  cannot  well  be  ignorant  of  the  bad  condition 
of  the  ftiip ;  but  although  they  were  ignorant,  it  would  be  the  fame,  being 
neceflarily  bound  to  provide  her  good,  and  able  to  perform  the  voyage. — 
1  Valins  Comm.  653. 

'r.  With  refpeft  to  damage  done  to  goods  through  the  infufhciency,  or 
bad  condition  of  the  fhip,  the  queftion  '•'  whether  the  mafter  or  owners  of  her 
are  anfwerable  for  it?"  depends  upon  the  afcertaining  whether  the  fhip  at  her 
departure  was  in  a  condition  to  perform  the  voyage,  or  whether  flie  became 
incapable  only  by  the  bad  weather,  and  ftormy  winds  and  fea,  which  fhe 
^met  with  in  her  way. — 2  Valins  Comm.  164. 

8.  See  Accident,  Concealment,  Condemnation,  Infufficiency,  Protefl,  Repair, 
Ship,  Wear  and  Tear. 

SEIZURE. 

1.  XTTHEN  goods  are  feized  by  perfons  adminiftering  juftice  in  a  place, 
»  '^  or  by  the  people  there,  or  by  others,  through  force  and  violence, 
and  without  paying  their  price ;  the  infurers  are  bound  to  make  good  their 
value  to  the  owners,  after  they  have  made  a  ceffion  of  them  for  the  benefit  of 
the  infurers,  in  order  that  thefe  may  recover  thofe  goods,  or  their  value, 
from  the  feizers. — Roccus,   210,   not.  54, 

2.  If  goods  be  lawfully  infured,  and  afterwards  the  veffel  is  difabled,  by 
teafon  of  which,  -with  the  confcnt  of  the  merchant,  they  are  put  into  another 

(hip, 


SEIZURE.  509 

fhip,  which  after  arrival  proves  an  enemy's  (hip ;  and  by  reafon  thereof  is 
fubjeft  to  feizure ;  in  this  cafe  the  infurers  (hall  anfwer,  for  that  is  fuch  an 
accident  as  is  within  the  intention  of  the  policy  of  infurance,  where  the 
policy  mentions  againfl  dangers  of  the  fea,  enemies,  &c.  as  policies  generally 
do.— Vin.  Ah:  tit.  Policy  of  Affur.  17.  cites  Gen.  Treat,  of  Trade,  j6. 

3.     Case. — ^The   plaintiff   caufed  himfelf  to  be   infured   on   the    Prince 
Frederic,  from  Vera  Cruz  to  London,  "  intereft  or  no  intercft,  free  of  averao-e, 
and  without  benefit  of  falvage  :"    the  fliip  was  afterwards  feized,  by  order  of 
the  viceroy  of  Mexico,  and  the  Spaniards  turned  her  into  a  man  of  war, 
called  her  the   St.  Philip,  and  fent  her  as  commodore,  with  a  fquadron  of 
Spanifh  men  of  war  to  the   Havanna,  they  having  firft  taken  out  the  South- 
Sea  company's  arms,  and  made  feveral  alterations  in  her,  and  there  was  a 
war  between  England  and  Spain,  and  Gibraltar  Avas  aftually  befieged  by  the 
Spaniards : — the  defendants   proved  the   figning  of  preliminary  articles  of 
peace,  before  the  ft-izure  of  the  fl-iip,  and  therefore  infilled,  that  this  feizure 
did  not  alter  the  property,  and  confequently  the  defendants  were  not  liable  ; 
for  if  the  property  was  not  altered,  this  infurance  made  by  the  plaintiff,  who 
had  no  intereft,  cannot  bind,  as  nothing  comes  within  the  policy  but  a  total 
lofs  ;  and  though  there  be   thefe   general  words  in  the  policy,  rejlraint  or 
detainment  by  princes,  Hardwicke,  chief  juftice,  declared,    iff.  that   a  xcaY 
might  begin  without  an  aftual   declaration  by  proclamation,  as  in   this  cafe 
by  laying  feige  to  Gibraltar,  a  garrifon  town  ;  though  there  might  be  depre- 
dations at  fea  between  princes  in  amity,  for  which  letters  of  marque,  &c. 
might  be  granted  :   2dly,  as  a  war  may  begin  by  hofiilities   only,  fo  it  may 
end  by  a  ceffation  of  arms,  and  thefe  preliminary  articles  being  figned  before 
the  feizure  of  the  fhip,  and  there  being  a  ceffation  of  arms,  he  thought  the 
fhip  being  taken  afterwards,  not  to  be  a  taking  by  eneniies,  unlefs  the  jury 
took  the  caption  to  begin  from  the  time   the  arms  were  feized,  which  was 
before  the  articles,  and  that  was  left  to  the  jury.    3dly,  fuppofing  the  fliip 
not  taken  by  enemies,  quaere,   whether  this-  detention  for  near  the  fpace  of  a 
year  was  in  thofe   forts  of  policies,   viz.   intereft  or  no  intereft,  a  detention 
within  the  policy  ;    or  whether  in  fuch  policies,  the  infurers  arc  ever  liable, 
but  in  cafe  of  a  total  lofs?  and  if  fo,  this  (liip  being  afterwards  reftored,  then 
he  directed  the  jury  to  find  for  the  defendant :  this,  he  faid,  depended  on  the 
cujlom  or  ufage  among  merchants. — The  jury  gave  a  verdift  lor  the  defend- 
ant, but  did  not  declare  upon  what  point ;    but  they  inuft  be  of  opinion,   (lie 
was  not  feized  in  time  of  war,  and  that  therefore  the  policy  being  intereft  or 

no  intereft,  the  affurers  were  not  liable,  becaufe  there  was  no  total  lofs. 

In  this  cafe,  the  infurance  was  made  by  one  Deflorcs  for  the  plaintiff,  and 
Deflores  wrote  his  name  on  the  policy,  and  before  the  trial  it  was  filled  up 
with  thefe  words,  "  I  made  this  for  the  benefit  of  Spencer  ;"  and  no  date  ; 
and  it  was  admitted  the  aftion  was  well  brought  by  ceftui  que  truft. — Lex 
Merc.  red.  287.  at  Guildhall,  15  Dec.  1736. — Spencer  v.  Franco. 

4.     Merchants,  mafters  of  ftiips,  owners,  mariners,  men  of  all  kinds, 
fliipSj  and  all  merchandifes  in  general,  and  efiefts  of  one  of  the  confederates, 

6  I  and 


510 


SHI  P. 


and  of  his  fubje61s  and  inhabitants,  fhall,  on  no  public  or  private  account,  hy 
virtue  of  any  general  or  fpecial  edift,  be  feized  in  any  the  lands,  ports, 
havens,  fhores,  or  dominions  whatfoever  of  the  other  confederate,  for  the 
public  ufe,  for  warlike  expeditions,  or  for  any  other  caufe,  much  lefs  for  the 
private  ufe  of  any  one  ;  nor  ftiall  they  be  detained  by  arrefts,  compelled  by 
violence,  or  under  any  colour  thereof,  or  in  any  wife  molefted  or  injured : 
which  however  is  not  to  be  underftood  of  that  detention  and  feizure,  which 
fhall  be  made  by  the  command  and  authority  of  juftice,  and  by  the  ordinary 
methods,  on  account  of  debt  or  crimes ;  in  refpeft  whereof  the  proceeding 
mufl.  be  by  way  of  law,  according  to  the  form  of  juflice. — Treaty  with 
France,    1713. 

5.  See  Prelim.  Difc.  39,  79.  Capture,  Claim,  Condevmation,  Conjifcation, 
Contraband,  Detention,  Document,  Embargo,  End  of  Voyage  or  Rif que.  Ille- 
gality, Ireland,  Law  of  Nations,  Mafqued  Ship  or  Property,  Neutral  Ship  or 
Property,  Prohibited  Goods,  Reclaim,  Reflraint,  War. 


S  H  IP. 

1.  T70R  the  reafons  mentioned  in  the  Prelim.  Difc.  p.  70.  I  have  deemed 
-^  it  far  from  immaterial  or  unufeful,  to  infert  in  this  place  (previous  to 
what  direftly  concerns  infurances  on  fhips)  a  brief  account  of  the  conflruElion, 
built,  and  different  kinds  of  that  moft  curious,  complicate,  and  noble  of  all 
machines,  upon  which  depend  fo  much  the  events  of  all  marine  undertakings, 
as  well  as  the  fuccefs  of  commerce  in  general :  efpecially  as  in  protefts  and 
other  documents  concerning  accidents  to  (hips,  &c.  the  technical  terms  and 
names  of  the  feveral  parts  of  them  are  commonly  made  ufe  of. 

2.  Naval  architeBure  comprehends  the  theory  of  delineating  marine 
veffels  upon  a  plane ;  and  the  art  of  framing  them  upon  the  flocks, 
according  to  the  proportions  exhibited  in  a  regular  defign. — It  may  be  diftin- 
guifhed  into  three  principal  parts  :  ill,  to  give  the  fliip  fuch  an  exterior 
form  as  may  be  moft  fuitable  to  the  fervice  for  which  (lie  is  defigned  :  2dly,  to 
give  the  various  pieces  of  a  fhip  their  proper  figures ;  to  aflemble  and  unite 
them  into  a  firm  competent  frame,  fo  that  by  their  combination  and 
difpofition  they  may  form  a  folid  fabric,  fufficient  to  anfwer  all  the  purpofes 
for  which  it  is  intended :  and,  3dly,  to  provide  convenient  accommodations 
for  the  officers  and  crew,    as   well   as   fuitable   apartments    for  the  cargo, 

furniture,  provifions,  artillery,  and  ammunition. The  exterior  figure  of 

a  (hip  may  be  divided  into  the  bottom  and  upper-works :  the  bottom,  or 
quick-work,  contains  what  is  termed  the  hold,  and  which  is  under  water 
when  the  (hip  is  laden :  the  upper-works,  called  alfo  dead-work,  comprehend 
all  that  part  which  is  ufually  above  the  water  when  the  (hip  is  laden :  the 
figure  of  the  bottom  is  therefore  determined  by  the  qualities  which  are 
necelfary  for  the  ve(rel,  and  conformable  to  the  fervice  for  which  (lie  is 

propofed  : 


H  I  P. 


511 


propofed  :  the  qualities  required  in  a  fliip  ought  to  determine  the  figure  of 
the  bottom  :  a  Jliip  of  war  therefore  fliould  be  able  to  fail  fwiftly,  and  carry 
her  lower  tier  of  guns  fufficiently  out  of  the  water ;  a  mcrchant-Jhip  ought  to 
contain  a  large  cargo  of  merchant-goods,  and  be  navigated  widi  few 
hands  ;    and  both  (hould  be  able  to  carry  fail  firmly,  fteer  well,  drive  little  to 

leeward,  and  fuftain  the  (hocks  of  the  fea  without  being  violently  ftrained. 

When  the  length  of  a  (hip  is  determined,  it  is  ufual  to  fix  her  breadth  by  the 
midfliip-beam:  on  this  occafion,  the  fhipwrights  are  divided  in  their  opinions 
about  the  breadth  which  ought  to  be  affigned  to  a  fliip  relatively  with  her 
length,  whilfl  each  one  produces  reafons  and  experience  in  fupport  of  his 
ownllandard: — thofe  who  would  diminifh  the  breadth  allege,  ift,  that  a 
narrow  veffel  meets  with  lefs  refiftance  in  paffing  through  the  water ;  2dly, 
that  by  increafing  the  length  fhe  will  drive  lefs  to  leeward ;  3dly,  that 
according  to  this  principle,  the  water-lines  will  be  more  conveniently  formed 
to  divide  the  fluid  ;  4thly,  that  a  long  and  narrow  fliip  will  require  lefs  fail  to 
advance  fwiftly  ;    that  her  mafl;s  will  be  lower,  and  her  riggino- lighter ;   and, 

by  confequence,   the  feamen  lefs  fatigued  with  managing  the  fails,    &c. : 

thofe,  on  the  contrary,  who  would  enlarge  the  breadth,  pretend  ift,  that 
this  form  is  better  fitted  to  preferve  a  good  battery  of  guns  ;  2dK',  that  there 
will  be  more  room  to  work  the  guns  conveniently ;  3dly,  that  by  carrvino- 
more  fail,  the  ftiip  will  be  enabled  to  run  fafter ;  or,  that  this  quality  will  at 
leafl:  overbalance  the  advantage  which  the  others  have  of  more  eafily  dividing 
the  fluid ;  4thly,  that  being  broader  at  the  load-xoatcr  line,  or  place  where  the 
furface  of  the  water  defcribes  a  line  round  the  bottom,  they  will  admit  of  being 
very  narrow  on  the  Jloor,  particularly  towards  the  extremities ;    and,  5thly, 

that  a  broad  veflel  will  more  readily  rife  on  the  waves  than  a  narrow  one. 

From  fuch  oppofite  principles  has  refulted  that  variety  of  flandards  adopted 
by  different  fliipwrights  ;  and  a  fervile  imitation  of  thefe  mechanical  methods 
has,  to  the  great  reproach  of  the  art,  produced  all  thefe  pretended  rules  of 
proportion :  for,  the  various  modes  they  have  hitherto  adopted  indifputably 
prove  their  doubt  and  uncertainty  with  regard  to  their  proper  ftandard. — 
In  vejfels  of  war,  the  general  dimenfions  are  eflabliflied  by  authority  of  officers 
appointed  by  government  to  fuperintend  the  building  of  fliips :  in  the 
merchants'  fervice,  the  extreme  breadth,  length  of  the  keel,  depth  in  the  hold, 
height  between  decks  and  in  the  waft;e,  are  agreed  on  by  contraft ;  and  from 
thefe  dimenfions  the  fliipwright  is  to  form  a  draught  fuitable  to  the  trade  for 
which  the  fliip  is  defigned. 

3.  Ship-Building  may  be  defined  the  manner  of  conflrufiing  (hips,  or 
the  work  itfelf,  as  diftinguiflied  from  naval  architcElure,  which  has  been 
confidered  as  the  theory. — The  pieces,  by  which  this  complicated  machine  is 
framed,  is  joined  together  in  various  places,  by  fcarfmg,  rabitting,  tenanting, 
and  fcoring : — during  the  conftruclion  of  a  ftiip,  ftie  is  fupported  in  the  dock, 
or  upon  a  wharf,  by  a  number  of  folid  blocks  of  timber  placed  at  equal 
diftances  from,  and  parallel  to,  each  other ;  flie  is  then  faid  to  be  on  the 
flocks : — the  firfl;  piece  of  timber  laid  upon  the  blocks  is  generally  the  keel:   I 

fay 


512  SHIP. 


fay  generally,  becaufe  of  late,   a  different  method  has  been  adopted  in  fome 
of  the  I'oyal   dock-yards,    by  b;:ginning  with  the  Jloor-timbers ;     the    artifls 
having  found  that  the  keel  is  often  apt  to  rot  during  the  long  period  of 
building  a   large   fliip  of  war  :    the  pieces  of  the  keel,    are  fcarfed  together, 
and  boiled,    forming  one  entire   piece,   which  conflitutes  the  length  of  the 
veffel  below  :    at  one  extremity  of  the  keel  is  erefted  the  Jlem;   it  is  a  flrong 
piece  of  timber  incurvated  nearly  into  a  circular  arch,    or,    according  to  the 
technical  term,    compafhng,   fo  as   to   project  outwards   at  the  upper  end, 
forming  what  is  called  the  rake  forward :   in  fraall  veffels  this  is  formed  of 
one  piece,   but  in  large  (hips  it  is  compofed  of  feveral  pieces  fcarfed  and 
bolted  together :    at  the  other  extremity  of  the  keel,  is  elevated  the  ficrn-pojl, 
which  is  always  of  one  entire  flraight  piece  ;   the  heel  of  it  is  let  into  a  mortife 
in  the  keel,    and  having  it's  upper  end  to  hang  outwards,    making  an  obtufe 
angle  with  the  keel,   like  that  of  the  flcrn :    this  projeftion  is  called  the  rake 
abaft:   the  ftcrn-pofl,   which  ought  to  fupport  the  flern,    contains  the  iron- 
work or  hinges  of  the  rudder,  which  are  called  the  googings,   and  unites  the 
lower  part  of  the  fhip's  fides  abaft :    towards  the  upper  end  of  the  flern-poft, 
and  at  right  angles  with  it's  length,    is  fixed  the  middle  of  the  wing  tranfom 
where  it  is  firmly  bolted  :    under  this  is  placed  another  piece  parallel  thereto, 
and  called  the  deck-tranfovi,   upon  which  the  after-end  of  the  lower-deck  is 
fupported  :    parallel  to  the  deck-tranfom,  and  at  a  proper  diflance  under  it, 
another  piece  is  fixed  to  the  flern-poil,   called  the  firft-tranfom,   all  of  which 
ferve  to  connecl  the  ff ern-pofl  to  the  fafiion-pieces :   two  more  tranfoms,- 
called  the  fecond  and  third,    are  alfo    placed  under  thefe,    being  likewife 
attached  to  the  fafliion-pieces,  into  which  the  extremities  of  all  the  tranforas 
are  let:  the  fafhion-pieces  are  formed  like  the  other  timbers  of  the  fhip,   and 
have   their   heels   relling   on   the    upper   part  of  the   keelfon,    at  the  after 
extremity  of  the  floor-ribbands : — all  thefe   pieces,    viz.    the  tranfoms,    the 
fafliion-pieces,  and  their  top-timbers,   being  flrongly  united  into  one  frame, 
are  elevated  upon  the  flern-pofl,   and  the  whole   forms  the   flru6lure   of  the 
Jlem,   upon  which  the  galleries  and  windows,    with   their   ornaments,     are 
afterwards  built ; — the  flem  and  flern-pofl  being  thus  elevated  upon  the  keel, 
to  which  they  are  fecurely  connefted  by  knees  and  arched  pieces  of  timber 
bolted  to  both,   and  the  keel  being  railed  at  it's  two  extremities  by  pieces  of 
dead-wood,   the  midfliip  floor-timber  is  placed  acrofs  the  keel,   whereto  it  is 
bolted  through  the  middle  :    the  floor-timbers  before  and  abaft  the  midfliip- 
frame  are  then  flationed  in  their  proper  places  upon  the  keel ;  after  which  the 
keelfon,   which,   like  the  keel,   is  compofed  of  feveral  pieces  fcarfed  together,  || 

is  fixed  acrofs  the  middle  of  the  floor-timbers,  to  which  it  is  attached  by  bolts  ''|' 

driven  through  the  keel,  and  clinched  on  the  upper  part  of  the  keelfon  :  the 
futtocks  are  then  railed  upon  the  floor-timbers,  and  the  hawfc-picces  erefted 
upon  the  cant-timbers  in  the  fore  part  of  the  fliip :  the  top-timbers  on  each 
fide  are  next  attached  to  the  head  of  the  futtocks  :  xho^  frames  of  the  principal 
timbers  being  thus  completed,  are  fupported  by  ribbands. — The  ribs  of  the 
fhip  being  now  flationed,  they  proceed  to  fix  on  the  planks,  of  which  the 
■wales  are  the  principal,   being  much  thicker  and  flronger  than  the  refl ;   the 

harpins, 


f 


H  I  P* 


513 


harpins,  which  maybe  confidcred  as  a  continuation  of  the  wales  at  tiicir  fore- 
ends,  are  fixed  acrofs  the  hawfe-pieces,  and  furround  the  fore  part  of  the 
fhip  :  the  planks  that  enclofe  the  fliip's  fides  are  then  brought  about  the 
timbers,  and  the  clamps,  which  are  of  equal  thicknefs  with  the  Wales,  fixed 
oppofite  to  the  wales  within  the  fliip  ;  thefe  are  ufed  to  fupport  the  ends  of 
the  beams,  and  accordingly  ftretch  from  one  end  of  the  (hip  to  the  other ;  the 
thick-Jluff,  or  flrong  planks  of  the  bottom  within-board,  are  then  placed 
oppofite  to  the  feveral  fcarfs  of  the  limbers,  to  reinforce  them  throughout  the 
{hip's  length:  the  planks  employed  to  line  the  fliip,  called  the  ceiling,  ox  foot- 
waling,  is  next  fixed  in  the  intervals  between  the  thick  fluff  of  the  hold :  the 
beams  are  afterwards  laid  acrofs  the  (hip  to  fupport  the  decks,  and'  are 
connefted-  to  the  fide  by  loddn^  and  handing-knees  : — the  cable-bits  bein^j 
next  erefted,  the  carlings  and  ledges  are  difpofed  between  the  beams  to 
(Irengthen  the  deck  :  the  zvater-zoays  are  then  laid  on  the  ends  of  the  beams 
throughout  the  fliip's  length,  and  the  Jpirketting  fixed  clofe  above  them  : 
the  upper-deck  is  then  planked,  and  the  Jtring  placed  under  the  gimnel  or 
planjlieer  in  the  wafle : — they  proceed  next  to  plank  the  quarter-deck  and 
forecajlle,  and  to  fix  the  partners  of  the  majls  and  capjlerns  \\n\h  the  coamings 
of  the  hatches :  the  breajl-hooks  are  then  bolted  acrofs  the  flem  and  bow 
v.'ithin-board,  xhtjlep  of  the  fore-mafl  placed  on  the  keelfon  ;  and  the  riders 
fayed  on  the  infide  of  the  timbers  to  reinforce  the  fides  in  different  places  of 
the  (hip's  length :  the  pointers,  if  any,  are  afterwards  fixed  acrofs  the  hold 
diagonally  to  fupport  the  beams ;  and  the  crotch  flationed  in  the  after-hold  to 
unite  the  half-timbers  :  the  fcps  of  the  main-viajl  and  capflerns  are  next 
placed ;  the  planks  of  the  lower-deck  and  orlop  laid  ;  the  navel-hoods  fayed 
on  the  hatofe-holes  ;  and  the  knee  of  the  head,  or  cut-water  connefted  to  the 
ftem :  the  fissure  of  the  head  is  then  erefted,  and  the  trail-board  and  cheeks 
fixed  on  the  fides  of  the  knee : — the  taffarel  and  quarter-pieces,  which 
terminate  the  fiiip  abaft,  the  former  above,  and  the  latter  on  each  fide,  are 
then  difpofed ;  and  the  ftern  and  quarter -galleries  framed  and  fupported  by 
\htvc  brackets :  the  pumps,  with  their  well,  are  next  fixed  in  the  hold;  the 
limber-boards  laid  on  each  fide  of  the  keelfon,  and  the  garboardflrakc  fixed 
on  the  fliip's  bottom  next  to  the  keel  without. — The  hull  being  thus  fabricated, 
they  proceed  to  feparate  the  apartments  by  bulk-heads,  or  partitions ;  to 
frame  the  port-lids ;  to  fix  the  cat-heads  and  chefs-trees ;  to  form  the  hatch- 
ways and  fcuttles,  and  fit  them  with  proper  covers  or  gratings :  they  next 
fix  the  ladders  whereby  to  mount  or  defcend  the  different  hatchways,  and 
build  the  inanger  on  the  lower-deck,  to  carry  oflF  the  water  that  runs  in  at  the 
hawfe-holes  when  the  fliip  rides  at  anchor  in  a  fea :  the  bread-room  and 
magazines  are  then  lined,  and  the  gunnel,  rails,  and  gang-xvays,  fixed  on 
the  upper  part  of  the  fliip :  the  cleats,  kevels,  and  ranges,  by  which  the 
ropes  are  faftened,  are  afterwards  bolted  or  nailed  to  the  fides  in  different 
places : — the  rudder,  being  fitted  with  it's  irons,  is  next  hung  to  the  ffcrn-poft ; 
and  the  tiller,  or  bar,  by  which  it  is  managed,  let  into  a  mortife  at  it's 
upper  end  :  the  fcuppcrs,  or  leaden  tubes,  that  carry  the  water  off  from  the 
deck,  are  then  placed  in  holes  cut  through  the  fhip's  fides ;  and  the  fandards 

6  K  bolted 


514  3  H  I  P. 

bolted  to  the  beams  and  fides  above  the  decks  to  ^ybich  they  belong:  the 
j)opp-lanthorns  are  lall  fixed  upon  their  cranes  over  .the  flern,  and  the  bilge- 
ways,  or  cradles,  placed  under  the  bottom,  to  conducl  the  fiiip  fleadily  into 
the  water  whilfl  launching. 

4.  By  the  built  of  a  fliip,  is  meant  the  particular  form  or  flru£lure  of  it, 
by  which  ftie  is  diRinguifhed  from  others  of  a  different  clafs  or  nation :  thus 
a  fbip  is  faid  to  be  frigat-built,  galley-built,  a  hag-boat,  a  pink,  a  cat,  &c. 
or  to  be  Englifli-built,  French-built,  American-built,  Sic. 

5.  Amongst  people  who  are  unacquainted  with  marine  diftinftions,  tlie 
term,  fliip,  is  of  very  vague  and  indifcriminate  acceptation :  in  the  fea- 
language,  however,  it  is  more  particularly  applied  to  a  velfel  furniflied  with 
three  mafts,  each  of  which  is  compofed  of  a  lower  maft,  top-maft,  and  top- 
gallant-maft,  with  the  ufual  machinery  thereto  belonging : — the  feveral  kinds 
of  veflels  which  are  ufually  comprehended  under  the  general  name  of  fhip, 
befides  thofe  of  the  line  of  battle,  arc  galleons,  frigates,  hag-boats,  cats, 
galleys,  barks,  pinks,  and  fy-boats :  the  hag-boat  only  differs  ftom  a  frigate- 
built  {hip  in  the  figure  of  the  ftern,  which  has  a  great  refemblance  to  that  of 
the  cat,  as  being  in  a  middle  degree  between  the  former  and  the  latter : — 
there  are  alfo  other  forts  of  trading  veflels,  as  Jhows  ox  fneaus,  brigs  or 
brigantines,  bilanders,  fchooners,  &c.  with  two  mafts,  andjloops,  hoys,  cutters, 
tartans,  &c.  with  one  maft,  chiefly  ufed  in  coafting. 

6.  If  a  fliip  be  broken  up,  or  taken  in  pieces  with  an  intent  to  convert 
the  fame  to  other  ufes,  and  afterwards  on  change  of  mind  flie  be  rebuilt  with 
the  fame  materials,  flie  is  now  another,  and  not  the  fame  ihip  ;  efpecially  if 
the  keel  be  ript  up,  or  changed,  and  the  whole  fiiip  be  all  once  taken  afunder 
and  rebuilt,  there  determines  the  partnerfliip  quoad  the  fliip ;  but  if  a  fliip 
be  ripped  up  in  parts,  and  taken  afunder  in  parts,  and  repaired  in  parts,  yet 
flie  remains  ftill  the  fame  veffel,  and  not  another ;  nay,  though  flie  hath  been 
fo  often  repaired,  that  there  remains  not  one  ftick  of  the  original  fabrick. 
Molloy,  b.  2.  c.  1. 

y.  Assurance  upon  fliips  is  not  to  be  made  for  more  thdiU  Jeven- eighth 
parts  of  the  real  value  of  fuch  fliips,  without  diftinftion  whether  the  intended 
voyage  be  on  this  or  the  other  fide  of  the  line. — Ordin.  of  Rett, 

8.  As  it  may  happen  in  a  river's  mouth  or  port,  that  a  fliip  fliall  be  on 
Jire,  and  others  that  are  very  near  and  contiguous,  fliall  be  expofed  to  the 
fame  calamity,  and  to  avoid  it,  it  fliall  be  abfolutely  neceflary  (as  the  only 
means)  timely  to  deftroy  or  fink  the  neareft,  it  may  be  done  ;  and  in  this 
cafe  the  other  fliips,  and  their  loadings,  fliall  contribute  to  the  payment  of 
that  which  fliall  have  been  fo  deftroyed,  and  make  good  the  lofs  of  her  and 
her  cargo  proportionably  among  them,  on  account  of  the  prefervation  which 
they  received  by  deftroying  her. — Ordin.  of  Bilb. 

9.    If 


SHIP.  5,5 

9.  If  infurance  be  made  on  the  hull  and  keel  of  a  fhip,  lier  tackle, 
apparel,  and  provifions,  or  on  a  part  thereof,  the  valuation  Ihall  be  made  in 
the  policy. — Or  din.  of  France. 

10.  He  who  caufes  himfelf  to  be  infu red  on  the  hull  or  body  of  a  fhip 
built  of^r  wood,  fliall  particularly  infert  it  in  the  policy,  mentioning  that  fhe 
js  built  of  fir  wood,  on  pain  that  otherwife  the  underwriters  fhail  not 
,be  obliged  to  pay  more  than  the  half  oi  the  lofs  that  might  happen. — 
Qrdin.  of  Ani/l. 

11.  Any  one  infuring  a  fhip's  hull  or  part  of  it,  fliall  be  obliged  to 
declare  and  make  known,  whether  it  be  a  fir,  or  an  oak  fhip,  a  larger  premium 
being  to  be  paid  for  one  of  fir,  than  one  of  oak  ;  fo  that  if  on  the  lofs  of  an 
infured  fliip  it  fliall  be  found  to  have  been  of  fir,  and  this  had  not  been 
declared  by  the  infured  when  the  infurance  w^s  defired,  he  Ihall  he  entitled 
to  only  half  the  fura  infured. — Ordin.  of  Copenh. 

12.  Remarks. — The  laws  of  different  countries,  with  regard  to  infurances 
on  fhips,  are  very  diffimilar ;  nor  do  any  of  them  feem  to  be  fulficiently 
calculated  to  prevent  the  injuflice  which  it  is  in  tlie  power  of  the  affured  and 
their  agents,  in  cafes  of  accidents,  to  do  to  the  infurers  :-r-fome  of  thofe  laws 
prohibit  the  including,  in  the  infurance  of  a  fhip,  any  of  her  rigging  or  tackle, 
as  being  fubjeft  to  toear  out,  or  tlieir  provifions  or  ammunition,  becaufe  of 
the  conftant  confumption  ;  others  forbid  to  infure  beyond  a  certain  proportion 
of  the  fliip's  value. — By  the  ordin.  of  Antwerp,  the  infuring  above  half  the 
value  of  the  fhip  was  prohibited,  if  flie  was  in  ballaft,  or  but  half  loaded  ; 
yet,  if  above  half  loaded,  her  full  value,  with  the  artillery  and  ammunition, 
might  be  infured,  but  not  the  tackling,  furniture,  &c. : — ^by  the  ordin.  of 
Rotterdam    (as  before  mentioned)  fven-cighihs  may  be   infured,    and   the 

freight : — by  the  ordin.  of  Middlcburg,  only  an  half,  and  none  of  the 
ammunition  or  provifions  that  are  to  be  confumed : — the  ordin.  of  Koningf- 
burg  allows  nine-tenths  of  the  value  of  the  fhip,  rigging,  tackle,  ammunition 
and  provifions  to  be  infured;  but  not  the  freight : — the  ordin.  of  France 
permits  to  infure  only  nine-tenths  of  the  fhip,  her  tackle,  apparel,  provifion, 
&c.  if  the  infured  be  on  board;  but  prohibits  infurance  on  freight  :^^\\\& 
ordin.  of  Am/lerdam,  Hamburgh,  and  Stockholm,  permit  infurance  to  the  full 
value  of  the  fliip,  with  all  it's  rigging,  anchors,  cables,  fails,  guns,  ammuni- 
tion,   provifions,  premium  of  infurance.   Sic.   nothing  excepted ;    alfo   the 

freight : — and  this  is  likewife  the  pra6lice  in  England. In  former  times 

infurances  on  fliips  were,  by  intelligent  underwriters,  preferred  to  thofe  on 
goods ;  but,  of  later  years,  fuch  have  been  the  artifices,  and  fo  various  the 
inal-praflices,  in  fitting  out  bad  and  infufficient  fhips,  and  in  fupplying  their 
real  defefts,  as  well  as  repairing  all  their  damages,  even  thofe  which  are 
properly  denominated  xoear  and  tear,  at  the  expence  of  the  infurers,  that  it 
is  become  on  the  whole  a  very  ruinous  branch  of  underwriting,  notwith- 
flanding  the  check  that  has  been  for  fome  years  pafl;  put  upon  thefe  praftices, 

bv 


5i6  SHIP. 

by  the  eftablidimcnt  of  the  regijler-qfice  in  London  (by  fubfcription  of 
infurers,  &c.}  for  the  purpofe  of  furveying  the  qiiahty  and  condition  of 
fhips,  in  the  principal  ports  of  Great-Britain  and  Ireland: — and  there  is 
unqucflionably  need  of  more  effeftual  reform  in  this  refpeft,  as  well  as  in 
what  regards  a  more   equitable  adjullment  or  indemnification  of  lodes  and 

averages   on   fhips. In  the  firll  place,   every  fliip  ought  to  be  obliged 

before  her  departure,  to  undergo  a  full  examination  by  Ikilful  perfons,  autho- 
rifed  by  law,  to  authenticate  her  real  date  and  condition,  and  to  report  in 
what  refpefts  die  is  fufhcient,  infufficicnt,  or  defeftive :    this  method  has 
lately  been  adopted  in  France,  in  purfuance  of  a  royal  edift  of  the  17th  of 
Auguft   1779;    whereby  all  diips  are  forbid  to  proceed  on  their  voyages 
before  fuch  a  furvey  is  made  : — 2dly,  the  infarcd,  or  owners,  ought  not  to  be 
permitted  to  fix  fuch  valuation  as  they  pleafe,  in  the  policy ;  but  to  be  obliged 
to  dand  the  rifque  themfelves  of  a  certain  proportion   (not  lefs  than  onc-fxth) 
of  the  true  value  of  the  diip,  her  appurtenances   and  outfit  (including  the 
vitlualling,  advance  to  failors,  premium  of  infurance,  &c.)  fo  that  in   cafe  of 
total  lofs,  the  owners  may  bear  at  lead  fome   part  of  the  decreafe   of  the 
fliip's  value,  through  the  necefiary  wear  and  tear,  confumption  of  provifions, 
&c. ;  and  that  in  cafe  oi  Jlranding,falvage,  &c.  the  infurers  may  not  be  liable 
to  pay,  not  only  for  real   but  ideal  lodes,  by  making  good  to  the  afiured 
the   full  value  of  the   ftiip,  &c.   as  it  dood  at  the  outfet,  and  efpecially  the 
amount  of  an  over-valuation,  which  is  generally  made  with  an  ill  defign : 
fuch  a  regulation  is  dill  more  neced'ary,  where  it  is  allowed  to  infure  the 
freight,  as  well   as  the  diip  and  out-fit : — 3dly,   when  a  ihip  has  fudered 
damages  on  the  voyage,  and  particularly  when  die  is  repaired  abroad,  it  is 
not  only  the  damages  die  has  really  fudained,  together  with  the  wear  and 
tear,  that  are  charged  to  the  infurers,  but  in  general  good  care  is  taken  to 
include,  under  the  denomination  of  repair,  the  fupplying  every  defeEl,  and 
making   good   every  infiifficiency   of  the   diip,   that   fubfided   prior   to   the 
commencement  of  the  rifque ;  by  which  means   infurers  are  often   made  to 
pay  an  average  of  50  per  cent,  when  in  judice  they  ought  not  to  pay  more 
than   10  per  cent. : — without  fome  proper  remedy,  or  preventives    againd 
thefe  frequent  malverfations,  infurers  ought  to  be  very  cautious  in  under- 
writing of  diips. With  regard  to  the  foregoing  and  fundry  other  matters 

which  relate  to  infurances  on  diips,  the  reader  will  receive  further  and  didinft 
information,  under  the  refpeftive  heads  referred  to  below. 

13.  See  Prelim.  Difc.  35,  53.  Abandonment,  Accident,  Average,  Bottomry, 
Condemnation,  Copenhagen,  Damage,  Dijlrefs,  Dock,  Eajl-India  Ships,  Foreign 
Court,  Foreign  Owner,  Foreign  Ships,  Fraud,  Freight,  General-Average, 
Infiifficiency,  Injured,  Intereji,  Mooring,  Navigation  &  Navigation  A61, 
Outfit,  Particular-Average,  Privateer,  Provifions,  Repair,  Rifque,  Running 
Foul,  Salvage,  Sea-zoorthy,  Ships  of  War,  Stranding,  Total  Lofs,  Valuation, 
Wager,  Wear  &  Tear,  Wreck, 

SHIP    OR    SHIPS. 


L    5^7    ] 
SHIP         OR         SHIPS. 

1.  TTTTHEN  merchandifes  are  fent  to  diftant  parts,  from  whence  no  letters 
^  *  can  regularly  come,  and  it  cannot  therefore  be  certainly  known, 
in  what  effefts,  or  in  what  fliips,  the  returns  will  be  made ;  it  is  cuftomary  to 
infure  on  goods  in  any  fhip  or  fliips  expefted,  or  that  may  come  from 
thence : — thus,  the  policies  from  La  Vera  Cruz  to  Cadiz  often  mention  no 
more  than  the  infurance  being  made  on  goods  or  money  to  be  fliipped  by  A. 
a  faftor  at  the  former  place,  to  the  conhgnment  of  B.  at  the  latter:  but  this 
is  leaving  too  much  room  for  fraud ;  for  the  fhippers  at  Cadiz  commonly 
join  the  goods  of  feveral  of  their  friends  in  one  invoice,  which  they  give 
the  faclor  who  goes  to  the  Weft-Indies ;  and  although  the  regijler  may  (hew 
that  goods,  or  money  came  from  A.  at  Vera  Cruz,  to  the  confignmcnt  of  B. 
at  Cadiz,  it  does  not  fix  for  xchofe  account  thefe  goods  are,  and  for  whom 
purchafed ;  fo  that  the  proof  oi  the  property  of  the  effefts  muft  reft  folely  on 
B.'s  declaration  or  affidavit :  the  people  at  Cadiz,  indeed,  when  they  join  feveral 
of  their  friends'  goods  in  one  invoice,  commonly  diftinguifli  them  therein  by 
particular  marks,  and  order  the  fador,  when  he  fends  any  returns,  to  explain 
in  the  regifter  how  much  belongs  to  each  mark  ;  but  as  this  is  not  always  ftriftly 
obferved,  infurers,  when  policies  are  offered  upon  uncertain  returns,  ought 
not  to  let  the  rifque  reft  upon  fuch  a  general  explication,  as  that  of  "  coming 
under  regifter  from  A.  to  B.  for  fuch  a  mark's  account ;"  but  to  infift  upon 
being  informed,  before  they  underwrite,  or  by  return  of  the  poft,  "  Avhat  thefe 
returns  are  the  produce  of:"' — as  for  inftance,  a  policy  might  be  filled  up  in 
the  manner  following,  viz.  "  on  money  or  goods  expefted  in  any  ftiip  or 
fhips,  for  the  proceed  of  an  hundred  pieces  of  cloth,  which  in  Spain  contained 
three  thoufand  one  hundred  varas,  and  in  value  amounted  to  twenty-four 
thoufand  rials  of  plate,  fent  out  in  five  bales,  N.  M.  No.  i  to  5,  under  the  care 

of  Don  J .  A .  or  for  the  proceeds  of  fuch  things  as  are  explained 

in  a  fealed-up  declaration  depofited  in  the  office." — By  thus  knowing  as  much 
as  the  infured  himfelf,  the  infurers  are  as  little  expofed  to  fraud,  by  figning 
on  a  ffiip  or  fhips  not  named,  as  if  they  were  named ;  and  by  feeing  what 
orders  were  given,  and  why  they  were  not  executed,  they  are  enabled  to 
come  at  the  truth  :  for  if  they  doubt  of  what  is  communicated  to  them,  they 
know  what  enquiries  to  make  on  the  fpot :  and  as  to  the  ffiips  which  can  be 
expefted,  it  is  commonly  known  in  what  condition  they  were,  when  they 
went  out,   how  long  they  have  been  kept  abroad,  and  are  likely  ftill  to 

remain  there. That  the  infurers  might  not  be   obliged  for  too  long  a 

detention,  it  has  been  wifely  introduced,  in  London,  to  make  it  a  condition 
in  fome  policies,  not  to  run  the  rifque  but  only  "  on  goods  that  ffiall  be, 
or  may  have  been  ffiipped,  on  or  before  fuch  a  date ;"  that  is,  within  a 
year  or  two. 

2.     The  Spaniards  frequently  get  infured  at  Amfterdam,   on  any  veffel  or 
veflels,  which  have  loaded  goods  at  La  Vera  Cruz,   or  elfcwhere,   in  the 

6  L  Spanifli 


5i8  SHIP        OR        SHIPS. 

Spanifli  Weft-Indies  to  their  addrefs  ;  but  tliere  is  found  fuch  deceit  in  thefe 
contrafts,  by  the  concerned  fending  falfe  declarations  that  they  had  not 
received  any  thing  upon  any  fhip  of  the  flota  or  flotilla,  when  they  had, 
and  returning  the  premium,  as  has  made  the  greateft  part  of  the  infurers 
refolve  not  to  underwrite  to  thofe  gentlemen,  but  on  condition  to  make 
■no  returns,  although  the  infured  fhould  have  no  intereft  in  the  fleet. — 
Ricard's  Negoce  d'Amft. 

3.  As  to  an  alTurer's  being  liable  to  the  adventure  of  goods  fliipped  from 
one  (hip  into  another;  fometimes  in  policies  of  aff^urance  it  happens,  that 
upon  fome  fpecial  confideration  this  claufe,  forbidding  the  transferring  of 
goods,  is  iuferted  ;  becaufe  in  time  of  hoftility  or  wars  between  princes,  it  might 
fall  out  to  be  unladen  into  the  ftiips  of  thofe  contending  princes,  whereby 
the  adventure  would  be  far  more  hazardous  :  but  according  to  the  ufual 
afluranCes,  which  are  made  generally  without  any  exception,  the  aflurer  is 
liable  thereunto  ;  for  "  it  is  underftood  that  the  mafter  of  a  fliip  without  fome 
good  and  accidental  caufe  would  not  put  the  goods  from  one  fhip  to  another, 
but  would  deliver  them  (according  to  the  charter-party)  at  the  appointed 
place  •/'  which  is  the  caufe  that  when  aflurance  is  made  upon  fome  particular 
goods  laden  in  fuch  a  fliip,  under  fuch  a  mark,  the  policy  maketh  mention  of 
the  troods  laden  to  be  tranfported  and  delivered  to  fuch  a  place  by  the  "  fliip, 
or  by  atiy  other  fliip  or  veflel,  until  they  be  fafely  landed  :"  fo  that  in  all  thefe 
and  the  like,  the  condition  makes  the  law. — Mai  Lex  Merc.  118. 

4.  Case. — The  plaintiff  infured  "  intereft  orno  intereft  on  any  fhip  he 
fliould  come  in  from  Virginia  to  London,  beginning  the  adventure  on  his 
embarking  on  board  fuch  fliip ;  the  money  to  be  paid,  though  his  perfon 
fliould  efcape,  or  the  ftiip  be  retaken  :" — he  embarked  on  board  the  Speed- 
well, but  fhe  fpringing  a  leak  at  fea,  he  went  on  board  the  Friendfliip,  and 
arrived  fafe  at  London :  but  the  Speedwell  was  taken  after  he  left  her : — 
and  now  in  an  aftion  againft  the  underwriter  he  was  held  liable  ;  for  the 
infurance  is  on  the  fhip  the  plaintiffy^^  out  in ;  and  had  that  got  fafe  home, 
and  the  other  been  loft,  the  plaintiff  could  not  have  recovered  upon  the  foot 
of  having  removed  his  perfon  into  that  ftiip  in  the  middle  of  the  voyage. — 
Stran.  1248.   ig  Geo.  2. — Dick  v.  Barrel. 

5.  The  following  cafe  affords  matter  for  refleflion : — A  merchant  in 
London,  in  1779,  not  knowing  in  what  fliip,  or  to  what  amount,  goods,  which 
he  expefted  from  his  correfpondent  in  one  of  the  Weft-India  iflands,  would 
come,  made  infurance  thereof  by  a  policy  "on  any  fhip  or  fhips,  wherein  was 
expreffed  the  kind  of  goods,  the  mark,  by  whom  they  were  to  be  fhipped, 
and  for  whofe  account ;  and  that  they  were  expefted  to  be  loaded  in  fome  or 
all  of  the  fliips  A,  B,  and  C,  then  at  the  faid  ifland." — Finding  it  difficult  to  get 
more  than  1,4001.  fubfcribedto  that  policy,  he  opened,  a  little  time  after,  three 
others ;  that  is,  one  upon  each  refpeftive  fhip,  by  name,  and  he  got  infured  on 
the  fame  goods,   defcribed  exaftly  as  above,  viz.  i,6ool.  in  the  fhip  A.  and 

ijCool. 


SHIP         OR        SHIPS.  515 

l,6ool.  in  the  fliip  B.  and  another  fum  in  the  ftip  C.  (which  lafl  is  immaterial,  as 
no  goods  were  put  on  board  the  C.  and  confequently  the  premium  was 
returned)  :— it  afterwards  appeared  that  there  was  fliipped  in  the  A.  to  the 
amount  of  1,5801 ;  and  in  the  B.  to  the  amount  of  740I. : — both  thefc'  fhips  were 
taken  and  made  prize  of  by  the  enemy  :  and  now  the  queflion  was,  '•  how 
the  lofs  ought  to  be  borne,  and  what  return  of  premium  be  made,  by  the 
infurers,  on  each  of  the  three  pohcies ;    i.  e.  that  on  fliip  or  (hips,  that  on  A, 

and  that  on  B  ?" The  infured  and  the  infurers  being  mutually  amicable^ 

referred  the  matter,  upon  a  verbal  reprefentation  of  it,  to  the  immediate 
decifion  of  two  friends ;  wlio  gave  their  opinion,  on  the  fpot,  that  the 
infurers  on  the  A.  fhould  pay  the  full  lofs  of  1,580!. ;  the  infurers  on  the  B. 
the  full  lofs  of  740I, ;  and  return  the  premium  on  the  fum  o\er-infured  on 
each  ;    and  that  the  infurers  on  fhip  or  fliips  fhould  bear  no  lofs,   but  only 

return  the  premium,  as  for  no  intereft. -I  was  myfelf  one  of  the  infurers 

on  the  B.  and  paid  the  lofs  according  to  the  faid  opinion;   which  neverthelefs 
I  think  was  erroneous,  for  the  following  reafons ;  viz. — 1.  that  when  two  or  more 
policies  are  made  on  the  fame  interefl.,  at  different  times,    the  /r/?  policy 
ought  to  fland  good  as  far  as  the  am.ount  of  the  interefl,  and  the  fubfequent 

policy  or  policies  only  for  what  may  be  fhort  infured  on  iht  prior  policy  : 

2.  that  when  two  or  more  policies  are  made  at  the  fame  time,  on  the  fame 
interefl,  then  the  infurers  on  both  or  all  thofe  policies  fhould  be  upon  an 
equal  footing  -^vith  regard  to  lofs  or  gain,  in  proportion  to  their  fubfcriptions  : 
— 3.  that,  in  the  inflance  before  mentioned,  the  inter'cf,  or  property  infured, 
was  as  clearly  defcribcd  and  identified  in  the  policy  "  on  fhip  or  fliips" 
(wherein  were  alfo  exprefsly  mentioned  the  fliips  A.  and  B.)  as  it  was  in  the 
policies  "  on  A.  and  B  ;" — and  therefore,  had  there  arrived,  between  the  time 
of  making  the  infurance  on  fhip  or  fhips,  and  the  time  of  making  thofe  on 

A,  and  B.  an  account  of  the  lofs  of  that  interefl  on  thofe  two  fliips,  it 
muft  have  been  paid  as  far  as  \,^oo\.foleiy  by  the  infurers  on  fhip  or  fliips : — 
but,  4.  even  if  the  three  policies,  i.  e.  on  fhip  or  fhips,  on  the  A.  and  on 
the  B.  refpeclively,  might  all  be  deemed  as  made  at  the  fame  tirde ;  and, 
although  neither  the  A.  nor  the  B.  had  been  mentioned  in  the  policy  on  fliip 
or  fliips  ;  yet,  as  foon  as  it  was  afterwards  afcertamed  that  the  goods 
infured,  and  defcribed  by  the  policy  on  fhip  or  fhips,  were,  in  faSl,  on  board 
the  A.  and  B.  that  policy  was  equally  valid,  and  in  the  fame  predicament 
(fuppofing  it  made  at  the  fame  time)  as  the  policy  On  the  A.  and  that  on  the 

B.  with  relation  to  the  particular  interefl  on  board  of  each  of  thefc  fhips  :  and 
therefore  the  loffes,  and  alio  the  returns  of  premium,  on  each  interefl  ought 
to  have  been  (in  fuch  cafe)  apportioned,  as  well  upon  the  policy  on  fhip  or  fhips, 
as  upon  each  of  the  other  policies  :  that  is,  the  infurers  on  fhip  or  fhips,  and 
the  infurers  on  the  A.  fhould  have  jointly  (according  to  a  due  apportionment 
on  the  fums  infured)  borne  the  lofs  and  return  of  premium  witli  refpeft  to 
the  interefl  in  the  A. ; — and  in  like  manner  the  infurers  on  fhip  or  fliips,  and 
the  infurers  on  the  B.  fliould  have  borne  the  lofs  and  return  with  refpefl  to 
the  interefl  in  the  B. — And  thus  the  only  queflion  would  be  concerning  the 
accuracy  of  the  calculation,  or  the  right  apportionment  of  the  lofs  and  return 

on 


520  SHIP        OR        SHIPS. 

on  each  policy. But  xhefaEl  was,  that  the  policy  on  fliip  or  fliips  was  a 

prior -infar ance ;  and  therefore  a  total  lofs  of  1,4001.  ought  to  have  been  paid 
thereon  ;  and  the  remainder  only,  being  920I.  (hould  have  been  paid,  as  alfo 
returns  of  premium  made,  by  the  two  other  policies,  in  a  due  proportion, 
according  to  the  refpeftive  fums  infured  thereon,  and  the  refpeclive  interefls 
fiiipped  upon  each  veflel. 

6.  A  PERSON  having  goods  coming  from  remote  countries,  and  does  not 
as  yet  know  the  name  of  the  Ihip  or  mailer,  he  is  allowed  to  have  them 
infured,  this  circumftance  being  fet  down  in  the  policy,  and  likcwife  the  name 
of  the  proper  lading  place,  and  of  the  perfon  who  (hall  load  thofe  goods  or 
merchandifes,  together  with  the  name  of  the  place  where  the  fliip  is  to 
unload,  and  of  the  perfon  to  whom  they  fhall  be  configned  ;  moreover  the 
infured,  upon  his  firft  knowledge  of  the  name  of  the  fhip  and  mailer,  fliall  not 
fail  without  delay  to  acquaint  the  infurer. — Ordin.  of  Stockh. 

7.  If  an  infurance  be  made  and  particularifed  to  be  on  feveral  fhips,  and 
the  whole  of  what  was  to  be  laded  be  put  in  one  Ihip,  the  infurer  (hall  not  be 
anfwerable  for  more  than  he  may  have  underwrote  on  the  particular  fhip, 
though  all  the  others  fhould  happen  to  be  lofl ;  and  he  fhaJl  return  the 
premium  of  the  overplus,  referving  half  per  cent. — Ordin.  of  France. 

8.  If  the  name  of  the  fhip  and  mafler  could  not  be  come  at,  the  letter  or 
letters  of  order  or  advice  mufl  be  annexed  to  the  policy,  or  at  leafl  be  fhewn 
to  the  infurers ;  and  at  all  times  notice  mull  be  taken  thereof  in  the  policy, 
exprelTmg  the  name  of  the  perfon  that  gave  the  advice,  and  the  date  of  fuch 
letter  or  letters  of  advice  and  order,  the  names  of  the  fliipper  and  confignee, 
under  penalty  of  being  null  and  void. — Ordin^  of  Rvtt. — Ordin.  of  Amjt. 

9.  When  an  infurance  is  made  on  (hip  or  fhips  with  convoy,  without 
naming  them,  the  fame  is  to  be  underflood  of  fuch  as  arrive  with  the  frjl 
convoy  at  the  place  mentioned  in  the  policy ;  but  if  it  appears  that  the 
infured  had  no  goods  or  interejt  at  all,  or  at  leafl  not  fo  much  as  the  infu- 
rance was  made  for,  then  the  premium  is  to  be  returned  and  paid  back  in 
proportion,  and  thereby  the  faid  contraft  fliall  be  annulled. — Ordin.  of  Hamb, 

10.  Remarks. — It  is  undoubtedly  very  hazardous  to  infure  goods  ex- 
prcffed  in  policies  to  be  "  in  any  fhip  or  fhips ;"  becaufe  the  underwriter  mufl 
in  almofl  all  fuch  cafes  be  dependent  on  the  honour  of  the  infured,  in  giving 
an  account  of  -what  goods  were  really  loaded,  at  lohat  time,  by  whom,  for 
xoliofe  account,  to  whofe  confgnment,  and  in  xvhat  fhips  ;  and  the  latter  has  it 
generally  in  his  power  very  much  to  deceive  the  former  in  thefe  refpefts. — 
The  temptations  of  felf-interefl  are  too  irrefiflible  with  many  perfons,  in  matters 
of  trade,  and  efpecially  in  thofe  of  infurance  ;  and  the  difhonefl  advantages 
that  have  been  taken  of  fair  and  unfufpe6ling  infurers,  in  requiring  them 
to  make  returns  of  premium,  on  the  pretence  of  no  interefl  having  been 

fliipped 


SHIP        OR         SHIPS. 


521 


fliipped,   or  of  Jhort  intcrejl,   when  the  faft  hath  been  otherwife,   liave  been 
too    frequently    detefted,    and   too  notorioufly  praftifed,    even  by  perfons 
of  reputed  probity,   not  to  make  it  neceffary,  in  conformity  with  the  plan  of 
the  prefent  work,  to  recommend  great  caution  in  the  underwriting  of  policies 
of  this    kind,    without   fuch  defcriptions   inferted  therein,    as  to  the  circum- 
ftances  aforementioned,  and,    if  pofTible,    the  names  of   the  fundry   velfels, 
by    fome  one    or    more    of    which   the    goods   are    cxpefted,    as   may  be 
fome    check    againft    impofition : — and   efpecially,     when    applications    are 
made    for    lofles,    averages,    and    returns    of   premium    on    fuch    policies, 
it   ought   to   become    an   eftabliflied   cuftom    for   die    infured    to     produce 
readily  as   of  courfe,     and    without   importunity,    all    fuch  orders,    bills  of 
lading,  invoices,    letters  of  advice,  and  other  documents,  together  with  fuch 
formal  and  authentic  attejlations ,   as  may  fatisfatlorily  afcertain  the  truth  and 
regularity  of  the  tranfaftions  : — for,  unlefs  fuch  methods  be  put  in  praftice, 
I  do  not  hefitate  to  aver,    from   my  own  knowledge  and  experience,   that 
infurers  may  be,    as  they  now  often  are,    kept  under  fuch  rifques    during 
many  months,  in  the  worft  fca/ons,    and  made  liable  for  whatever  lofles  and 
damages  may  happen  in  the  courfe  thereof,   to  the  full  amount  of  their  fub- 
fcriptions,   although  three  times  the   value  of  the  fums   underwritten,   and 
perhaps  more,     may  during   fuch  a  fpace  of  time  atlually  arrive,   in  fome 
kind  of  goods,   by  fome  fhips,    and   from  fome  correfpondcnts  or  other ;    or 
finally  the  underwriter,  neceflarily  ignorant  of  thefe  things,  and  confidmg  all 
the  while  in  the  good  faith  of  the  merchant,  may  be  called  upon  for  a  return 
of  the  whole,    or  a  large  proportion  of  the   premium  : — nay,   I  have  been 
affured,  that  there  are  not  wanting  houfes  even  of  character  and  reputation, 
who  make  it  a  rule  at  certain  feafons,  to  keep  a  large  fum  infured  on  fliip  or 
fhips,  for  a  very  confiderable  time  ;   and  at  lafl  arbitrarily  fix  the  lofles,   the 
interefl:,  and  the  returns  of  premium  for  (hort  or  no  interefi.  on  fuch  policies, 
juft  as  events  may  have  happened,    and  as  fuits  tiieir  own  advantage,  or  as 
the  goods  may  have  been  on  their  own  account,  or  for  that  of  others. — And 
it  is   ftill   further  remarkable,   that  there   are   fome   perfons   who  think,    or 
pretend  to  think  themfelves  juflifiable  in  fuch  management  of  the  mode  of 
infurance  here  treated  of. — Moreover,   in  fome  inftances  where  goods  have 
been  fiiipped  and  departed,  on  foreign  voyages,  efpecially  from  and  to  difiant 
places    (as  between  the  Wefl-Indies  and  Newfoundland,   America,   and  the 
like)  the  proprietors  or  infured  having  had  good  reafonto  think  diey  might  be 
loft,    taken,    or  other  accident  happened  to  them,    and  having  even  known 
what  velfels  they  were  ftiipped  in,   the  time  of  their  departure,  &c.   yet,  in 
order  to  cover  a  fraudulent  intention,  they  have  caufed  policies  to  be  made 
on  fliip  or  fliips,   concealed  from  the  infurers   the   intelligences  they  were  in 
poffenion  of,  and  managed  fuch  infurances  in  the  iniquitous  manner  above 
intimated. 

11.  See  Alteration  of  Policy  Voyage  or  Rifque,  Average,  Blank,  Conceal- 
ment, Doiible- Infurance,  Flota,  Fraud,  Intelligence,  Intcrejl,  Order,  Prior- 
Infurance,  Proof,  Regijler,  Relading,  Return,  Rifque,  Seafon,  Trufl  &  Trujlee. 

6  M  SHIPS   OF    WAR. 


[      522      3 

SHIPS         OF         WAR. 

1.  T>  Y  Stat.  8  Geo.  i.  c.  24.  f.  8. — In  cafe  any  captain  or  other  officer  of 
-*-'  any  of  his  majefty's  (hips  of  war,  (hall  receive  on  board,  or  permit 
to  be  received  on  board,  any  goods  in  order  to  trade  with  the  fame,  except 
gold,  Jilver,  or  jezoels,  and  except  goods  belonging  to  any  merchant  fliip 
wrecked,  or  in  imminent  danger,  in  order  to  the  preferving  them,  and  except 
fuch  goods  as  they  be  ordered  to  receive  by  the  commiflioners  of  the  admi- 
rahy  ;  every  fuch  captain  or  officer  fliall,  being  convifted  by  a  court  martial, 
forfeit  his  command  and  office,  and  be  for  ever  incapable  to  fer\  e  in  the 
naval  fervice,  and  ffiall  forfeit  to  his  majefty  all  wages  due  to  him  for  his 
fervice  in  the  ffiip  whereunto  he  fliall  belong,  or  at  any  time  after  fuch  offence 

fliall  be  committed. S.  9.  The  faid  captain  or  officer,  and  the   owners  of 

fuch  goods,  fliall  forfeit  the  value  of  fuch  goods,  one  moiety  to  fuch  as  fliall 
make  difcovery  of  the  offence,  and  the  other  moiety  to  Grecnwich-Hofpital ; 

all  which  forfeitures  may  be  fued  for  in  the  court  of  admiralty. Made 

perpetual  2  Geo.  2.  c.  28. And  by  22  Geo.  2.  c.  33.  f.  24.  Penalty  500I. 

2.  It  ffiall  be  lawful  for  the  people  and  fubjefts  of  both  kings,  to  have 
accefs  to  the  refpeftive  ports  of  the  one  and  the  other,  and  there  remain,  and 
depart  again  with  the  fame  freedom,  not  only  with  their  ffiips  and  other 
veffels  for  trade  and  commerce,  but  alfo  with  their  other  fliips  fitted  for  war, 
armed,  and  difpofed  to  refifl:  and  engage  the  enemy ;  and,  arriving  by  ftrefs 
of  weather,  to  repair  their  fliips,  or  furnifli  ihemfelves  with  provifions  ;  fo 
that,  entering  willingly,  they  be  not  fo  numerous,  that  they  give  juff  occafion 
of  fufpicion  ;  to  which  end  they  are  not  to  exceed  the  number  of  eight,  nor 
continue  in  their  havens,  nor  about  their  ports,  longer  time  than  they  ffiall 
have  juff  caufe,  for  the  repair  of  their  fliips,  to  take  in  provifions,  or  other 
neceffary  things,  much  lefs  be  the  occafion  of  interrupting  the  free  commerce, 
and  coming  in  of  other  fliips  of  nations  in  amity  with  either  king ;  and  whea 
an  unufual  number  of  men  of  war  by  accident  fliall  come  into  any  port,  it 
ffiall  not  be  lawful  for  them  to  come  into  the  faid  ports  or  havens,  not  having 
firft  obtained  permiffion  of  the  king  unto  whom  the  ports  do  belong,  or  the 
governors  of  the  faid  ports,  if  they  be  not  forced  thereinto  by  ftrefs  of 
weather,  or  other  neceffity,  to  avoid  the  danger  of  the  fea ;  and  in  fuch  cafe 
they  ffiall  prefently  acquaint  the  governor  or  chief  magiftrate  of  the  place 
with  the  caufe  of  their  coming  ;  nor  fliall  they  remain  there  any  longer  time 
than  the  faid  governor  or  magiftrate  ffiall  think  convenient,  or  do  any  aft  of 
hoftility  in  fuch  ports,  that  may  prove  of  prejudice  to  the  one  or  the  other 
of  the  faid  kings. — Treaty  with  Spain,   1667. 

3.  No  ffielter  or  refuge  ffiall  be  given  in  their  ports  to  fuch  ffiips  as  have 
made  a  prize  upon  the  fubjefts  of  either  of  their  royal  majefties :  and  if 
per  chance  fuch  fliips  ffiall  come  in,  being  forced  by  ftrefs  of  weather  or  the 
danger  of  the  fea,  particular  care  ffiall  be  taken  (as  far  as  it  is  not  repugnant 

to 


SHIPWRECK.  ror, 

to  former  treaties  made  with  other  kings  and  dates)  that  they  go  from  thence, 

and  retire  elfewhere  as  foon  as  poflible. Neither  of  their  mod   ferene' 

royal  majeflies  fliall  permit,  that  the  fliips  or  goods  of  the  other  be  taken 
upon  the  coafts,  or  in  the  ports  or  rivers  of  their  dominions,  by  fliips  of 
war  or  others  having  commiflion  from  any  prince,  commonweahh,  or  town 
whatfoever ;  and  in  cafe  fuch  a  thing  fliould  happen,  both  parties  fliall  ufe 

their  authority  and  united  force,   that  the  damage    done   be    made  good. 

Treaty  with  France,  1713. 

4.  If  any  of  the  Ihips  of  war  of  the  king  of  Great-Britain  do  come  to 
Algiers,  or  to  any  other  port  or  place,  of  that  kingdom,  with  any  prize, 
they  may  freely  fell  it,  or  otherwife  difpofe  of  it,  at  pleafure,  witliout  being 
molefted  by  any :  and  his  majefly's  faid  fhips  of  war  fhall  not  be  obliged 
to   pay   cufloms    in  any  fort;    and  if  they  fliall   want  provi(ions,  vi6tuals 

or  any  other  things,  they  may  freely  buy  them  at  the  rates  in   the  market. 

Treaty  with  Alg.  1682  &  1686. 

5.  See  Convoy,  Cruifer,  Morocco,  Pajfport,  Privateer,  Sea,  Ship,  Tripoly. 

SHIPWRECK. 

1.  TT  is  natural  and  juft  for  people  fuffering  (liipwreck,  to  endeavour  firfl 
•*-  to  preferve  their  own  lives ;    which  when   once   done,  their  next  care 
fliould  be,  how  befl  to  keep  what  has  not  perifiied  from  bcino-  pilfered  or 
flolen ;    and  that  what  is  mofl  valuable   may  firft  be  faved.     To  prevent 
Jhamcn  from  making  the  faving  of  their  own  chefts  and  goods  their  "rcateft 
care,  and  to  encourage  them  to  preferve  all  they  can  when  a  vell'el  is  wrecked 
it  is  by  fome  fea-laws  enafted,  that  not  only  their  zoa.ges   due   when   the 
^misfortune  happened,   (hall  be  paid,  but  moreover  fomething  for  their  extra- 
ordinary labour.     If,  without  leave  from  the  mafter  who  oflers  to  maintain 
them,  they  immediately  abandon  the  place  where  the  fliip  (Iranded,  whilfl 
there  are  hopes  oS.  falvage,  no  wages  fhould  be  paid  them  from  the  produce 
of  what  is  faved  without  their  help. — When  accidents  of  this  nature  happen 
on  a  fudden,  people  are  apt  in  their  furprife  to  lay  hold  of  the  thino-s  nearefl; 
to  them,  without  remembering  or  confidering  that  they  have  others  of  much 
greater  value  under  their  care  ;    therefore  it  has  been   often   agreed   with 
mailers  of  veffels,  on  the  fliipping  of  diamonds,  and  fo  expreffed  in  the  bill 
of  lading,  that  he  fhould  always  carry  them  about  him,  and  fave  tliem  if  he 
himfelf  landed  fafe. — -By  the  ordinance  of  Spain  it  is  enafted,  that  gold  and 
filver  fhall  be  lodged  at  a  certain  place  near  the  main  mail,  fo  that  it  may 
always  be  eafily  come  at;  and  that  in  cafeof  fhipwreck  thofe  fpecies  fliall  firft 
be  faved:  fometimes  it  luckily  happens  that  a  perfon  has  chefts  or  bags  of 
thofe  precious  metals  neareft  at  hand,   and  on  that  account  they  are  the  only 
ones  faved. — Perfons  who  are  concerned,  and  on  the  fpot,  may,  previous  to 
their  knowing  who  fhall  be  moft  fortunate,  agree  among  themfclves  to  bring 

ail 


5H 


SHORT        INTEREST. 


all  that  is  faved  into  an  average. In  the  year  1727,  the  fliip  called  Nueflra  ' 

Senora  de  las  Anguflias,  having  on  board    144  chefts,    containing  432,000 
dollars  in  hlvcr  for  account  of  iundries,  and  443  furrons   of  cochineal  (of 
whicli  120  were  entirely  for  the  mailers  account)  met  with  fuch  bad  weather 
in  her  palfage  from  La  Vera  Cruz,  that  fhe  became  very  leaky,  infomuch 
that  it  was  with  great  dilTiculty  her  crew  could  keep  her  above  water,  though 
they  incellantly  laboured  at  the  pumps  day  and  night:  after  great  danger  and 
fatigue  they  arrived  at  the  ifland  Flores,    where  there  is  no  ground  to  anchor, 
or  whereon  to  run  afhore  :  the  mafter  and  men  determined  to  fave  themfclves 
with  what  money  and   goods  they  could,  before  (lie  funk ;    and  accordingly 
with  only  the  fhip's  launch  and  boat,  and  three  or  four  fmall  filhing  boats, 
they  firfl;  carried  all  the  people  afliore,  and  then  took  out  the  fdver :  juft  as 
they  had  unloaded  it  all,  the  (hip  funk  where  the  depth  is  not  to  be  fathomed, 
and  with  her  all  the  cochineal   and  goods  belonging  to  the   mafter,  and  to 
others :  when  he  arrived  at  Cadiz  with  tlie  filver  faved,   the  mafter  demanded 
of  the  proprietors  of  the  filver,  for  his  having  preferred  the  falvage  of  their 
property  to  his  own,  to  ftiare  with  them  on  an  average  :  though  his  allegations 
feemed  founded  on  reafon,  yet  he   loft  his  fuit  at  Madrid,  where  the  king's 
counfel  very  juftly  argued,  that,  as  by  his  majefty's  ordinance  the  fdver  was 
lirft  to  be  faved,  the  mafter  w^as  thereto  obliged,  preferably  to  the  faving  of 
his  own  property  ;  and  confequently  had  only  done  his  duty,  and  could  not 
claim  any  thing  for  fo  doing. — 1  Mag.  76. 

2.  The  judges  of  our  admiralty  fliall  inform  themfelves  of  the  caufe  of 
the  ftiipwreck  or  ftranding,  of  what  country  the  mafter  and  mariners  are,  and 
the  quality  of  the  (hip  and  goods,  and  to  whom  they  belong ;  and  in  cafe  the 
ftranding  was  wilful,  the  veflels  enemies  or  pirates,  and  the  goods  contraband, 
they  fliall  feize  the  men,  veflels,  and  goods. — Ordin.  of  France. 

3.  Should  any  perfon  be  guilty  of  embezzling  or  concealing  any  fliip- 
wrecked  goods,  they  fliall  be  puniflied  with  Jire,  if  it  be  the  mafter  of  a  fliip 
or  a  feaman,  and  any  other  perfon  with  the  gallows  ;  and  befides  be  obliged 
to  make  reftitution  for  the  goods  concealed. — Ordin.  of  Antxo. 

4.  See  Abandonment,  Embezzlement,  Perijliable-Commodities,  Salvage, 
Seamen,  Stranding,  Total  Lofs,  Wages,  Wreck. 


SHORT         INTEREST. 

1.  AS  the  infurers  are  not  anfwerable,  in  cafe  of  lofs,  for  the  payment  of 
-^^  the  fum  infured  beyond  the  value  of  the  effetis  or  interejl,  neither 
can  they  retain  the  firemium,  except  in  proportion  to  fuch  amount  or  value 
as  was  a6lually  in  rifjue  ;  but,  on  fuch  fum  as  the  intereft  covered  in  rifque 
appears  to  be  fliort  of  the  fum  infured,  the  premium  muft  be  returned  by 
the  infurers,  except  an  half  per  cent,  on  the  amount  of  fuch  fliort  intereft, 

which 


SMUGGLING.  .or 

0~'0 

which   they  are  entitled,   by  ancient  cuftom,  to  TQtSLm.—Stracca,  de  ajftc, 
^l.  6.  n.  6  &  g. 

2.     The  following  example  may  ferve  as  a  guide  for  calculating  the  return 
of  premium  in  all  cafes  of  Ihort  interelt ; — viz. 

Suppofe  the  fnm  infured  by  the  policy  to  be      -         -         -         -         -         *.         /'i^ooo 
And    that    it    ftiould    appear,   that  the  value  of  the  goods,  or  intereft  in  rifque 
(made  up   or  covered,  according  to  the  rules  inferted  under  title,  Inter cjl ;  or 
according  to  the  rate  of  i/a/ua^iore  in  the  policy)  amounts  only  to  -         -  72 


o 


So  that  the  fhort  intereft  would  be     -----__.  £27  r 

Then,  fuppofe  the  premium  to  have  been  10  guineas  per  cent. — the  underwriters  having 
received  (deducing  los.  brokerage)  only  lol.  they  muft  return  gl.  los.  percent,  on  the 
faid  275I.  making  26I.  2s.  6d. — confequently,  if  on  i,oool.  the  return  be  26I.  2s.  6d. ;  on 
each  lool.  it  is  2I.  i2s.  3d. 

^.  If  any  perfoh  fhall  make  afTurance  upon  his  goods,  fliips,  or  merchan- 
dife,  in  fundry  places,  and  give  no  notice  thereof,  but  willingly  and  wittingly 
conceal  the  fame,  in  order  by  that  means  to  recover  the  price  and  value  of 
the  goods,  merchandife,  or  fhip,  fingle,  double,  treble,  or  more  ;  he  fhall 
have  no  right  to  demand  any  thing  of  the  infurers,  or  any  of  them  in  refpeft 
to  fuch  infurance,  nor  draw  back  the  premium,  but  the  fame  fliall  ht  forfeited, 
one-third  to  our  ufe,  and  the  other  two-thirds  to  the  officer  and  informer 
refpeftively,  befides  arbitrary  correftion :  however,  the  afliirer  fhall  deduft 
half  per  cent,  therefrom,  according  to  ancient  cullom,  if  he  was  ignorant  of 
what  is  above  mentioned,  otherwife  not. — Ordin.  of  Antw. 

4.  See  Average,  Cancelling,  Double-Infurancc,  Interejl,  Premium,  Prior- 
Infurance,  Return,  Ship  or  Ships,  Valuation. 

SLAVES. 

1.  'TpHE  infurer  takes  upon  him  the  rifques  of  the  lofs,  capture,  and  death 
-*•  of  (laves,  or  any  other  unavoidable  accident  to  them  :  but  natural 
death  is  always  underftood  to  be  excepted  : — by  natural  death  is  meant,  not 
only  when  it  happens  by  difeafe  or  ficknefs,  but  alfo  when  the  captive  deflroys 
himfelf  through  defpair,  wliich  often  happens :  but  when  flaves  are  killed,  or 
thrown  into  the  fea  in  order  to  quell  an  infurreftion  on  their  part,  then  the 
infurers  mufl  anfwer. — 2  Valin's  Comm.  55. 

2.     See  Africa,  Captives,  Commodity,  Goods. 

SMUGGLING. 

See   Prelim.  Difc.  39,   83.    Barratry,  Illegality,  Seizure, 

6N  SOCIETY. 


[    526    ] 


SOCIETY. 

1.  T>  E  S I  D  E  S  the  two  incorporated  companies,  filled  the  London-Affu- 
-»-'  ranee,  and  the  Royal-Exchange-Aflurance,  which  infure  on  (hips, 
merchandifes,  bottomry,  lives,  fire,  &c.  in  general ;  we  have  in  London 
feveral  focieties  and  oflfices  for  afiTurance  of  houfes  or  goods,  or  both,  from 
jire ;  and  others  which  infure  on  lives: — of  all  which,  and  of  their  plans, 
terms,  methods,  &c.  accounts  are  given  under  their  refpeftive  titles,  as 
referred  to  below. 

2.  Case. — An  a£tion  on  the  cafe,  upon  articles  of  agreement  conftituting 
a  fociety  for  the  mutual  afiTurance  of  each  other's  fliips. — The  agreement  was, 
that  "  when  and  fo  often  as  any  of  the  fhips,  wherein  any  of  the  members  of 
this  fociety  had  property,  fliould  be  loft,  the  reft  fliould  contribute  to  fuch 
lofs :  but  every  member  was  obliged  to  prove  a  property  of  500I.  in  a  fhip : 
and  if  he  would  ceafe  to  be  a  member,  he  was  obliged  to  give  fix  months 
notice." — The  piaintiff^  Ihewed  that  he  had  the  requifite  property  in  a  fliip, 
and  became  a  member  ;  and  that  the  fliip  was  loft. — Plea :  that  the  plaintiff 
had  parted  with  his  intercjl'm  the  fliip before  the  lofs  happened. — 'Replication: 
that  by  articles  of  agreement  with  the  purchafer  of  the  fliip,  the  plaintiff  had 
agreed  to  pay  500I.  if  a  lofs  happened  within  three  months :  and  therefore  he 
was  interefted  during  the  voyage. — Demurrer  to  this  replication :  and  joinder 

in  demurrer. Mr.  Wallace,  for  the  defendant,  argued  that  the  ftipulation 

between  the  plaintiff  and  the  defendant  was  at  an  end,  as  foon  as  the  plaintiff 
had  difpofed  of  his  property  in  the  fhip :  and  his  private  agreement  with  the 
purchafer  of  it,  without  the  confent  of  the  fociety,  is  no  more  than  his  own 

private   and    perfonal    infurance    made   to   the    purchafer. Mr.   Afliurft, 

contra,  for  the  plaintiff,  argued,  that  he  ought  to  recover,  both  upon  the  words 
of  the  agreement,  and  within  the  equity  of  it:  for  he  had  not  ceafed  to  be  a 
member  of  the  fociety,  nor  could  ceafe  to  be  fo,  without  giving  fix  months 
notice ;  therefore  he  remained  bound  to  contribute  to  the  loffes  of  the  reft ; 
and  confequently,  the  reft  were  bound  to  contribute  to  his :  and  he  ftood  as 
a  trujiee  for  the  perfon  to  whom  he  had  fold  his  intereft  in  the  ftiip  :  it  was 
not  neceflary  that  he  fliould  continue  to  hold  it  in  his  own  right :  he  remained 
contributory  to  the  lofl'es  of  the  other  members,   as  he  had  not  given  fix 

months  notice  of  his  ceafing  to  be  one. Mr.  Wallace,  in  reply,  urged 

that  as  the  property  was  out  of  the  plaintiff  at  the  time  when  the  lofs  happened, 
he  could  take  no  benefit  of  the  articles  of  mutual  infurance  amongft  the 
members  of  this  fociety :  for,  tlie  parting  with  his  property  in  the  ftiip  was 
his  own  aft ;  and  if  he  remained  contributory  to  the  loffes  of  the  other 
members,  that  arofe  from  his  own  negleft  in  not  giving  the  fix  months  notice, 

as  the  articles  required  him  to  have  done. But  the  court  were  of  opinion, 

that  as  he  continued  contributory  to  the  loffes  of  the  others,  at  the  very  time 
when  this  lofs  happened,  it  was  but  juft  and  equitable,  and  within  the  words 
and  meaning  of  the  agreement,   that  they  fhould  contribute  to  his :   he  ftill 

had 


Stamps.  527 

had  an  intereft  in  the  fafety  of  the  fliip :  he  had  not  parted  with  all  his 
intereft  in  it ;  but  continued  interefted  quoad  this  lofs.— Per  cur. ;  judgment 
for  the  plaintiff.— 3  Burr.  1512.    Trin.  4.  Geo.  2,.— Reed  v.  Cole.  ' 

3.  See  Amicable-Society,  Chamber  of  Afurance,  Company,  Equitable- 
Society,  Fire,  Friendly-Society,  Hand-in-Hand  Fire-Ofice,  Lives,  London- 
AJfurance-Company,  PartnerJJiip ,  Royal- Exchange  AJfurance-Company,  Sun^ 
Fire-OJice,  Union- Fir e-Office,  Wejlminjier-Fire-Office. 


SPAIN. 

1-   /^  N  no  merchandifes  infured  from  the  Indies  fliall  the  infurers  pay  for 
^^  <iny  damage  ox  d&^citncy  ;    for,   if  there  be  either,  the  fliipper,    and 
not  the  infurer,   fhall  be  anfwerable  for  it;   except   only   in   cafe  of  grofs 
average,   by  a  jettijon. — Ordin.  of  Spain. 

2.     See    Average,    Bilboa,    Bottomry,    Cadiz,    Conful,    Damage,     Flota^ 
Intereft  or  no  Interefi,  Ordinance,  Regifln,  Regulation,   Treaty,  Vera  Cruz. 


STAMPS. 

1.  Tl  Y  Stat.  11  Geo.  1.  c.  30.  f.  44. — When  any  veffel  or  merchandifes 
■^-^  fliall  be  infured,  a  policy  duly  flamped  (hall  be  ifl'ued  or  made  out 
within  three  days  at  furtheft: ;  and  the  infurer  neglecting  to  make  out  fuch 
policy  fhall  forfeit  lool.  to  be  recovered  and  divided  as  other  penalties  maybe 
by  the  laws  relating  to  the  flamp  duties;  s.ndd\\ promifjory  notes  foraflurances 
of  fliips  or  merchandifes  at  fea,  or  going  to  fea,   are  declared  void. 

2.  By  Stat.  8  Geo.  3.  c.  25.  f.  4. — Whereas  by  an  aft  made  in  the  lafl 
effion  of  parliament,  entitled,  "  An  aft  for  altering  the  {lamp  duties  upon 
policies  of  affurance,  &c.  &c,  &c."  it  was  among  other  things  enaftcd,  that 
"  from  the  5th  of  July  1765,  if  the  properties  of  more  than  one  perfon  in  any 
fhip,  cargo,  or  both,  or  of  more  than  a  particular  number  of  perfons  in 
one  general  partnerftiip,  or  of  more  than  one  body  politic  or  corporate,  to  a 
greater  amount  in  the  whole  than  the  fum  of  tool,  in  any  Ihip,  cargo,  or 
both,  be  affured  on  the  fame  policy,  fuch  policy  fhould  be  void,  and  the 
premium  paid  thereon  remain  the  property  of  the  aflfurer ;  with  a  provifo,  that 
it  fliould  and  might  be  lawful  to  alTure,  or  caufe  to  be  allured,  the  properties 
of  any  number  of  perfons  whatfoever,  in  any  fliip,  cargo,  or  both,  by  one 
policy,  ftamped  with  five  flamps  of  five  fliillings  each :" — and  after  reciting, 
that  fuch  part  of  the  faid  a£l  as  before  recited  bad  been  found  very  incon- 
venient to  merchants,  traders,  and  others,  refiding  out  of  the  kingdom,  and 
injurious  to  the  commercial  dealings  thereof,  it  was  enafted  (among  other 
things)  "that  from  and  after  the  ift  of  Augufl  1767,  it  fhould  and  might  be 

lawful 


528  STATUTES. 

lawful  to'aflure,  or  caufe  to  be  alTured,  the  properties  of  any  number  ofpcrfons 
•whatfoe\  er,  in  anyjhip,  cargo,  or  both,  to  the  amount  of  any  fum,  not  exceed- 
ing in  the  whole  the  fum  of  one  thoufand  pounds,  by  a  policy  ftamped  with 
z.  {iam])  o^  five Jhillings ;   and  that  it  fhould  and  might  be   lawful   to  affure, 
or  caufe  to  be  afl'ured,  the  properties  of  any  number  of  perfons  whatfoever, 
in  any  fliip,  cargo,  or  both,  to  the  amount  of  any  fum  -whafocver,  by  one 
"^oXxcy  ^2iV!\^Qdi  \i\\\\  two  pamps  oS.  pve  fhillings  each  ;    and  that  every  policy 
fo  ftamped,   fiiould  be  good,  valid,  and  effeftual,  &c. — with  a  provifo,  that 
if  any  rifcjue  or  adventure,  diJlinH  from  the  rifque  or  adventure  mentioned  in 
the  original  policy,  and  upon  which  any  further  premium  fliould  be  given, 
fhould  be,  by  any  writing  or  declaration  not  duly  ftamped,  added  to  any  fuch 
original  policy,  fuch  additional  afturance   ftiould  be  void,  and  the  premium 
paid  thereon  ftiould  remain  the  property  of  the  afl^urer,  &c.  and,  if  any  perfon 
or  perfons  ftiould  be  fued  by  virtue  of  the  faid  aft,  &c.   the  proof,  as  to  the 
amount  fo  aftured,  fhould  lie  on  the  perfon  or  perfons  that  fhould  be  fo  fued, 
and  not  on  the  perfon  or  perfons  who  fhould  fue." — And  whereas  a  doubt 
has  arifen,  whether  the  property  of  difngle  perfon  to  any  amount,  required 
more  than  a  ftamp  of  five  fhillings ;  therefore,  be  it  enafted  that  from  and 
after  the  ift  of  May  1768,  z\\  policies  of  affurance  by  which  the  property  of  one 
perfon,  or  of  a  particidar  number  of  perfons  in  one  general  partnerfiip,  or  of 
one  body  politic  or  corporate,  in  any  flip  or  cargo,  or  both,  fliall  be  aftured 
to  the  amount  o(  more  than  one  thou/and  pounds,  fliall  be  ftamped  with  two 
fvefiillingjlamps  ;  and  that  every  fuch  policy,  which  fhall  not  be  fo  ftamped, 
fliall  be  void,  and  the  premium  paid  thereon  fliall  remain  the  property  of  the 

affurer. S.  5.  And  if  any  perfon  or  perfons  fliall  be  fued  by  virtue  of  this 

aft,  for  afturing  the  property  of  one  perfon,  or  of  a  particular  number  of 
perfons  in  one  general  partnerlhip,  &c.  in  any  fhip  or  cargo,  or  both,  to  a 
greater  amount  than  i,oool.  by  a  policy  ftamped  with  a  ftamp  of  five  fhillings 
071^ ;  then,  the  proof  as  to  the  amount  or  value  fo  aftured,  fhall  lie  on  the 
perfon  or  perfons  that  fliall  be  {ofued,  and  not  on  the  perfon  or  perfons  who 

fhall  fue. S.  6.  Provided  that  if  any  rifque  or  adventure  diflhi£l  from  the 

rifque  or  adventure  mentioned  in  the  original  policy,    and  upon  which  any 

further  premium  fliall  be  given,  fhall  be,  by  any  writing  or  declaration  not 

duly  flamped,  added  to  any  fuch  original   policy,  fuch  additional  affurance 

fhall  be  void,  and  the  premium  paid  thereon  fhall  remain  the  property  of 

the  afturer. N.  B.   By  flat.   16  Geo.  3.  c.  24.  an  additional  duty  of  one 

Jliilling  is  payable  on  every  policy. 

3.     See  Company,  Policy. 

STATUTES. 

1.  T  N   England,   very  few  of  the  numerous  matters  direftly  belonging  to 

-■-  infurance  are  regulated,   as  all  the  more  material  of  them  are  in  other 

countries,    by  exprefs  ordinances,    or   afts  of    the   legiflature     (which  are 

undoubtedly  of  great  ufe  as  a  guide  in  forming  the  judgment,  by  exhibiting 

to 


STATUTES.  529 

to  everyone  the  rules  of  juftice  and  equity  in  fuch  matters)  —  but,  thofe 
tranfaclions,  and  the  difputes  which  arife  concerning  them  amongft  us,  are 
for  the  moft  part  governed,  and  decided  upon  in  our  courts,  by  the  large 
principles  of  the  marine  Laxo  founded  upon  general  and  long  eftablifhed  ufage, 
and  by  precedents  of  a  great  variety  of  cafes  which  have  been  tried  and 

adjudged,   and  which  are  reported  promifcuoufly  in  our  law  books. The 

only  ftatutes  which  have  been  made  expre/sly  regarding  infurances  are  as 
follow,  viz. — 43  Eliz.  c.  1 2.  by  which  an  office  was  erefted  for  making  and 
regiftering  policies  of  infurance,  and  for  empowering  her  majelly  and  her 
fucceffors  to  grant  commiffions  to  perfons  therein  mentioned,  who  conflitutcd 
a  court,  called  the  Court  of  Policies  of  AJfurance,  for  determining  differences 
relating  thereto,  from  whofe  fentence  an  appeal  lay  to  the  chancery  : — 13 
and  14.  Car.  2.  c.  23.  by  which  the  aforementioned  aft  was  revived,  and 
larger  powers  were  given  to  the  commifTioners  ; — 9  Ann.  c.  6.  to  prohibit 
the  infuring  on  marriages,  births,  chriftenings,  and  fervice  : — 6  Geo.  1.  c.  18. 
by  which  his  majefty  was  enabled  to  grant  two  charters,  for  erefting  two 
corporations  for  infuring  fhips,  merchandife,  &c.  and  lending  money  on 
bottomry,  which  are  now  called  the  London- AJfurance,  and  the  Royal- 
Exchange-AJJurance  : — 7  Geo.  1  c.  27  ;  •  8.  Geo.  1.  c.  15;  and  11  Geo.  1. 
c.  30.  which  alfo  relate  to  thefe  corporations :— 19  Geo.  2.  c.  32.  for 
recovering' bottomry  and  infurance  loiTes  from  a  brankrupt  infurer's  eftate ; — 
19  Geo.  2.  c.  37,  for  prohibiting  infurances,  intereft  or  no  intereft,  or  by 
way  of  gaming  or  wagering;  permitting  reinfurance  in  certain  cafes ;  regula- 
ting loans  and  infurances  on  bottom.ry  and  rcfppndentia,  &c.: — 21  Geo.  2.  to 
prohibit  infurance  on  fliips  or  goods  belonging  to  the  crown  or  fubjefts  of 
France,  during  the  then  war. — 14  Geo.  3.  c.  48.  ,  prohibiting  infurance  on 
lives  or  other  events,  without  intereft,  &c. : — and  laftly,  8  Geo.  3.  c.  25 ;  and 
16  Geo.  3.   c.  34;   for  impofing  {lamp. duties  on  policies  of  infurance. 

2.  But,  as  we  have  divers  other  ftatutes  for  the  regulation  of  a  great 
variety  of  commercial  and  maritime,  affairs,  which  it  is  indifpenfably  requifite 
to  be  acquainted  with,  for  the  right  underftanding  and  properly  adjufting 
thofe  of  infurance  ;— therefore,  not  only  the  aforementioned  a6ts  of  parliament 
which  immediately  relate  to  infurance,  but  alfo  all  fuch  as  it  is  needful  to 
confult  in  refpeft  thereof,  are  hereunder  noted,  in  the  order  of  time  in  which 
they  were  made  :  and  the  material  claufes  of  each  of  them  will  be  found 
inferted,  or  abftrafted,  under  the  refpeftive  heads,  or  titles  of  this  work 
t^o  which  they  properly  belong,  and  to  which  they  are  referred  as  follows, — viz. 

■    3;     Stat.      3  Edw.  1.  c.    4.  ^ 

17  Edw.  2.  c.  11.  C    -  See  Wreck. 
2  Edw.  3.C.  13.  ) 
25  Edw.  3.C.    2.  -     -     -     Enemy,  Piracy. 
49  Edw.  3.      -     -     -     -     Average,  Jetfon. 

13  Ric.  2.  c.  5.  )     _     _    Admralty-Court. 
15  Ric.  2.  c.  3.  ) 

6  O  Stat. 


530  STATUTES. 

St  A.               4  Hen.  5.  c.     7.  -  See  Reprifal. 

2^  Hen.  8.  c.  ig.  -  -     -  Maritime -Court. 

28  Hen.  8.  c.  15.  -  -     -  Piracy. 

32  Hen.  8. Average^   Contribution. 

5  Eliz.  c.    5.    -  -  -     -  Cinque-Ports,   Foreign-Ships. 

8  Eliz.  c.    5.     -  -  -     -  Maritime-Court. 

8  Eliz.  c.  13.    -  -  -     -  Wreck. 
35  Eliz.  c.    8.    -  -  -     -  Cable. 

43  Eliz.  c.  12.    -  -  -  -  Court  of  Policies  of  AJfurance, 

21  Jac.   1.  c.  16.  -  -  -  Limitation. 

17  Car.  1.  c.  14.  -  -  -  Stranded  &  Stranding, 

12  Car.  2.  c.    4.  -  -  -  Corn. 

12  Car.  2.  c.  18.  -  -  -  Colony,  Foreign  Ships,  Navigation, 

13  Car.  2.  c.    9.  -  -  -  Convoy. 

13  £?  14  Car.  2.  c.  23.     -    -     -  Court  of  Policies  of  AJfurance, 

14  Car.  2. Average. 

15  Car.  2.  c.    7.     -     -     -  Colony. 

16  Car.  2.  c.    6.     -     -     -  Bottomry. 
22(^23  Car.  2.  c.  11.    -     -     -  Mafter. 

4W.&M.C.15.) Prohibited  Goods. 

8  G?    9  Will.  3.  c.  36.5 

9  f^'  10  Will.  3.  c.  15.     -     -    -  Arbitration  &  Award, 

11  £^  12  Will.  3.  c.    7.    -     -    -  Piracy,  Seamen. 

11  6?  12  Will.  3.  c.  20.) 

.  r  -    -    -     6(?7-7z. 

1  Ann.  c.  13.      ) 

1  Ann.  c.    9.  -  -  -  -  Barratry,  Fraud. 

5  Ann.  c.    8.  -  -  -  -  Colony,  Scotland. 

5  Ann.  c.  19.  -  -  -  -  Corn. 

5  Ann.  c.  29.  -  -  -  -  Salt. 

6  Ann.  c.  13.  -  -  -  -  Cruifer. 

6  Ann.  c.  16.  -  -  -  -  Broker. 

7  Ann.  c.    7.  -  -  -  -  Corn. 

9  Ann.  c.    6.  -  -  -  -  Court  of  Policies  of  Affurance, Event, 
9  Ann.  c.  21.  -  -  -  -  Prize. 

A        r     8  (.  Peri/hable-Commodities,    Salvage, 

3  Geo.  1.  c.  13.     -     -     -     Anchor,  Pilot. 

Geo        c   12  ^Barratry,  Peri/kablc-Commodities^ 

^     Salvage,  Wreck. 
rEaJl- India  Company,  London- Affu- 

6  Geo.  1.  c.  18.     -    -    -  <  rance-Company,  Partnerfiip,  Roy- 

C  al-Exchange  Affurance-Company, 

7  Geo.  1.  c.  21.     -     -     -     Eajl- India,  Prize. 

P  (Company,      London  -  Affurance- 

op     *'     *    '">-    -    •"<  Company,  RoyaUExehange  Affu- 

'  rance-Company. 

Stat. 


S      T      A 


U 


53^ 


Stat.  8  Geo.  i.  c.  24.  - 

n  Geo.  1.  c.  29.  - 

li  Geo.  1.  c.  30.  - 


See 


2  Geo.  2. 

2  Geo.  2. 

3  Geo.  2. 

4  Geo.  2. 
7  Geo.  2. 

7  Geo.  2. 

8  Geo.  2. 
12  Geo.  2. 

12  Geo,  2. 

13  Geo.  2. 
17  Geo.  2. 
19  Geo.  2. 
19  Geo.  2. 


c.  22. 
c.  28. 
c.  14, 
c.  18. 
c.    8. 


c.  15. 
c.  24. 

C.  21. 
C.30. 

c.    4. 

c-  34- 
c.  22. 

c.  32. 


19  Geo.  2.  c.  27- 


-  < 


21  Geo.  2. 

22  Geo.  2. 
22  Geo.  2. 
24  Geo.  2. 
26  Geo.  2. 
29  Geo.  2. 

31  Geo.  2. 

32  Geo.  2. 

7  Geo.  3. 

8  Geo, 
11  Geo. 
11  Geo 

13  Geo.  3 

14  Geo.  3 

15  Geo. 

16  Geo. 
16  Geo 

16  Geo.  3. 

17  Geo.  3. 

19  Geo.  3. 

20  Geo.  3. 


3- 
3- 
3- 


3- 
3- 

3- 


c.    3. 

c-  33- 
C.45. 

c.  19. 

c-33- 
c.  29. 

c.    - 

c.    7. 

c.  25. 

c.  31. 

c.  38. 

c.  26. 

c.  48. 

C.31. 

c.  5. 
c.  34. 

C.47. 

c.  7. 
c.  67. 
c.    6. 


^Pirate,   Seamen,  Ships  of  War^ 
\     Wages. 
Barratry. 

{'Company,  Infurer,  London-AJfu- 
\  rance-Company,  Policy,  Royal- 
j  Exchange  AJfurance-Company, 
L     Stamps. 

'     Tender  of  Money. 

'    Ships  of  War,   Wages. 

■  Prize. 

■  Pafs  or  Pafsport. 

■  Stocks. 

■  Embezzlement. 
Tender  of  Moneys 

-     Wool. 

•  Wages. 

'    Intereji  or  no  Intereji,  Recapture. 

■  Wreck. 

•  Bankrupt,  Reinfurance. 
Bottomry,   Declaration,   Infurer, 

Intereji,   Intereji  or  no  Intereji, 
Market,  Payment,  Privateer,  Prat- 
fit,  Reinfurance,  Refpondentia, 
.  Valuation,  Wager. 

Enemy,  France. 
Appeal. 

Convoy,  Ships  of  War. 

Theft. 

Salvage,  Wreck. 

Fifli. 

Corn. 

Piracy  &  Pirate. 

Embargo. 

Premium,  Stamps. 

Herring- FifJiery. 

Greenland. 

Foreign  Ozvner. 

Event,  Inter  efi,  Lives,  Name,  Stocks. 

Ireland,    Newfoundland. 

Colony,   Recapture. 

Stamps. 

Whale- Fifhery. 

Colony,  Ranfom,  Recapture. 

Recapture. 

Ireland,  Wool. 

4.     See 


232  STOCKHOLM. 

4.  See  Prelim.  Difc.  8,  27,  68,  69,  76.  C^/ej  Adjudged,  Company,  Court 
of  Policies  oj  AJfurance,  Infurance,  Lazo  &c.  Maritime  Law,  Ordinance, 
Policy,  Ufage,  VerdiB. 

STOCKHOLM. 

1.     Policy,  on  a  Shzfi,  at  Stockholm. 

WE  the  underwritten  hereby  infure,  every  one  for  himfelf  and  his  heirs, 
in  part  or  the  whole,  on  the  fhip  or  vefTcl  called  or  it's 

hull,  together  with  mails,  fails,  anchors,  cordage,  and  tackling,  ordnance,  ammunition,  or 
other  appurtenances  (which  fhip  God  preferve  !)  and  whereof  is  mafter,   or 

whoever  clfe  fliall  go  for  mafter,  or  by  whatfoever  other  name  the  faid  lliip  or  the  mafter 
is  or  Ihall  be  named,  befides,  the  faid  fhip,  or  lliare  of  the 

fliip,  being  by  agreement  valued  at  no  further  account  or  proof  of  it's  value 

fliall  be  demanded,  than  this  policy. — The  infurers  hereby  take  upon  their  adventure,  and 
make  themfelves  anfwerable  for  all  detriment  and  damage  which  may  happen  from  the  day 
and  hour  when  the  mafter  fhall,  in  order  to  this  voyage,  begin  to  take  into  the  ftiip  or  veffel, 
ballafl,  or  lading,  and  'till  the  faid  fliip,  with  all  it's  furniture  and  appurtenances,  fliall  be 
arrived,  as  agreed  on,  at  the  place  abovementioned,  all  rifque  of  the  infurers  ceajing 
imen'y-one  days  after  thefafe  arrival  of  the  veffel,  or  foonerij it  he  entirely  cleared,.  The  mafter 
fliall  be  at  liberty  to  condu6l  and  profecute  the  voyage  in  fuch  way  and  manner,  as  he  fliall 
judge  beft  and  moft  convenient,  and  whether  by'  neceftity,  or  by  his  own  fliill  and  forecaft, 
put  into  fuch  harbours  and  roads,  as  are  conducive  to  the  happy  profecution  of  the  voyage. 

, Accordingly  the  infurers  take  upon  themfelves  all  damages  that  fhall  happen   to  the  faid 

fhip  by  wind,  weather,  fea,  fliipwreck,  ftranding,  running  foul,  fea-drift,  fire,  taking  a 
wrong  courfe,  embargos,  arrefts,  and  detentions  by  kings,  princes,  and  people  of  what 
nation,  condition,  or  quality  foever;  reprifals,  capture,  or  forcible  plundering  by  men  of 
war,  cruifers,  privateers,  pirates,  and  enemies ;  miftakes  and  neglefts,  and  obftinacy  of  the 
mafter  and  (hip's  company,  together  with  all  other  lofles  and  misfortunes  without  exception, 
which  fliall  happen  contrary  to  the  knowledge  and  confent  of  the  infured.  The  infurers  in 
all  thefe  particulars  fo  far  putting  themfelves  in  the  place  of  the  infured  as  to  bear  them 
free  from  all  loffes  and  damages;  fo  that  the  infurers,  each  according  to  his  fliare  herein 
infured,  fhall  pay  to  the  infured,  his  faflor,  agent,  or  affign,  all  loffes  he  has  fuftained  with 
refpeft  to  the  fum  infured,  and  this  within  two  months  after  due  proof  of  the  accident  or 
lofs:  yet  in  cafe  of  a  total  lof;,  two  per  cent,  fliall  be  deduced  at  the  time  of  payment. 
Upon  any  damage  happening,  it  fliall  be  lawful  for  the  infured,  their  faftors,  fervants,  or 
affigns,  to  labour,  and  ufe  all  poffible  means  for  the  defence,  fafeguard,  and  recovery  of 
the  faid  infured  fhip  or  veffel ;  and  likewife  the  infured  by  himfelf,  or  others,  may, 
according  to  the  laws  and  inftitutes  of  every  place,  affift  in  faving  the  fliip  or  veffel,  and, 
without  the  infurer's  confent  or  declaration,  by  faic  difpofe  of  what  is  faved.  The  infurers 
fhall,  befides,  pay  all  the  charges  incurred  thereby,  and  the  lp//es  attending  it,  whether  any  thing 
be  faved  or  not,  and  allow  of  the  account  of  difburfemcnts  under  the  oath  of  the  perfon  by 
whom  it  is  drawn  up;  but  what  has  been  faved  fhall. belong  to  the  infurers.  For  all  which 
the  infurers  have  in  ready  money  received  the  injurance  premium  agreed  on 

in  the  hundred.  The  infurers,  furtlier  hold  themfelves  free  from  all 
average  or  charges  by  demurrage,  and  likewife  from  damages  and  average  under  three 
per  cent.  Further,  the  infurers  fubjecl  themfelves  to  the  aforementioned  infurance  and 
average  ordinance  of  his  majefty  our  moft  gracious  fovercign,  and  bind  themfelves,  bona 

fide, 


STOCKS.  533 

fide,  readily  and  truly  to  make  good  and  fulfil  the   prcmifes.     Executed  and  InFured 
at  Stockholm  the 

2.     Policy,   on  Goods,  at  Stockholm. 

'T^HE  underwritten  hereby,  &c.  (as  before)  ton  goods  and  merchandifcs, 

J-     of  any  name,  condition,  or  quality  focver,    which  are   already  fhippcd,   or   fhall   be 
fliipped,  on  board  the   fliip  or  vcffel   called  which  God  prefervc !  &c.  (as 

before)  which  goods,  whatfoevef  the  coft  of  them  may  haVe  been,  arc  by  compaaappraifcd 
at  —The  infurers  hereby  take  upon  their  rifque,  &c.   (as  before) 

from  the  day  and  hour  of  thefe  goods  and  merchandifes  being  brought  to  the  lading  place 
or  (hore.  in  order  to  be  fhipped  or  carried  from  thence  in  vclfels,  prahms,  lighters,  or  boats, 
on  board  the  faid  fhip,  till  the  faid  goods  and  merchandifes  be  arrived  at  the  place  above 
agreed  on,  and  there  at  the  ulual  place  of  clearance  be  entirely  and  without  the  lead 
damage  taken  out  of  the  fhip,  and  landed  from  thence  in  other  veflels,  boats,  prahms,  and 
lighters.  This  unlading  fliall  be  performed  w^nhm  fifteen  days  after  the  arrival  of  the  laid 
fliip  or  veffel  at  the  place  agreed  on,  the  infurers  rifque  then  ceafing,  unlefs  unavoidable 
impediment  and  delays  hinder  the  difcharge  from  being  performed  within  the  faid  term 
which  muft  be  proved  by  any  misfortime  or  damage  happening.  The  maftcr  fhall  be  at 
liberty,  &c.  (as  before).  If  necefhty  fo  requiring,  goods  or  merchandifes  be  removed 
out  of  this  fhip,  and  put  on  board  another  veffel,  whether  larger  or  fmaller  (which  the 
infured  in  fuch  a  cafe  may  permit  to  be  done  without  waiting  the  infurer's  leave  for  it)  the 
infurer  fhall  run  the  fame  rifque  of  them,  as  if  they  had  never  been  unladed.  The  infurers 
take  upon  themfelves  all  damages,  &c.  &c.  (as  before).  The  infurers  neverthelefs  hold 
themfelves  free  from  all  average  and  charges  by  demurrage,  and  likewife  from  average  and 
damage  under  diree  per  cent,  and  on  wool,  hemp,  Jlux,  Jtock-Jijh,  herrings,  torn,  peafe,  and 
fiigar,  under  len per  cent.     Further,  &c.  (as  before). 

3.     See  Average,  Commencement  of  Voyage  or  Rifque,  Corn,  End  of  Voyage 
or  Rifque,  Peafe,  Salvage,  Ship. 


STOCKS. 

1.  "O  Y  Stat.  7  Geo.  2.  c.  8.  f.  4. — Every  perfon  who  fhall  make  any  contraft 
-L#  relating  to  the  prefent  or  future  price  of  flocks,  upon  which  any 
premium  fliall  be  given  for  liberty  to  put  upon,  deliver,  accept,  or  refufe  any 
public  flock,  or  fecurities,  or  any  contrafts  in  the  nature  of  puts  and  refufals, 
or  fliall  lay  any  fuch  wager  (except  fuch  who  fliall,  bona  fide,  fue,  and  witii 
efteft  profecute,  for  the  recovery  of  the  premium  paid  by  them,  and  except 
fuch  who  fliall  voluntarily  before  fuit  commenced,  repay  or  tender  fuch 
premium  as  they  fhall  have  received,  and  alfo  except  fuch  who  fhall  difcover 
fuch  tranfaftions  in  any  court  of  equity)  fhall  forfeit  500I.  and  all  perfons 
negotiating  or  writing  fuch  contraft  fliall  likewife  forfeit  500I.  which  penalties 
may  be  recovered  by  aftion  of  debt  or  information  in  any  of  his  majcfty's 
courts  of  record  at  Wen:minfter ;    one  moiety  to  his   majefly,  and  the  other 

moiety  to  them  who  fliall  fue  for  the  fame. -S.  5.  No  money  or  other 

confideration  fliall  be  voluntarily  given  or  received  for  the  compounding  any 

6  P  diflereiic^ 


534  STOWAGE. 

difference  for  the  not  delivering  or  receiving  any  public  flock  or  fecurities ; 
but  all  fuch  contrafts  (hall  be  fpccifically  executed  ;  and  all  perfons  who  fhall 
voluntarily  compound  fuch  difference  ffiall  forfeit  lool. 

2.  Remark. — Such  kind  of /^fl?-^rtmi  or  contrafts  relating  to  the  ri/e  or 
fall  of  the  price  of  the  public  fecurities,  called  ftock-jobbing,  are  very  common 

and  to  very  large  amounts  (notwithftanding  the  above  and  other  laws  in  force 
to  prohibit  it)  in  times  when  they  are  fubjeft  to  confiderable  variations,  fuch 
as  on  the  apprehenfions  of  a  war,  or  the  approach  of  peace,  &c. ;  and  the 
jobbers,  in  order  to  cover  themfelves  from  lofs,  or  fecure  a  proportion  of 
o-ain,  by  the  difference  in  the  price  which  might  happen  within  the  time 
limited  by  the  bargain,  have  frequently  got  policies  of  infurance  underwrote 
for  large  fums,  to  be  paid  by  the  infurers,  as  a  lofs,  in  cafe  the  price  of  fuch 
or  fuch  a  ftock  fliould  rife,  or  fall  (as  might  be  agreed)  beyond  a  certain  limit, 
withirt'  the  time  prefcribed  : — but,  as  the  foundation  of  fuch  policies  was 
illicit,  fo  were  fuch  wager  policies  themfelves: — and  now,  by  flat.  14  Geo.  3. 
c.  48.  all  infurances  on  any  event  or  events,  wherein  the  perfons  affured  fliall 
have  no  intereft,  or  by  way  o[ gaviing.  Sec.  are  void. 

3.  See  Prelim.  Difc.  56.  Bargain,   Commodity,   Event,   Intereft,   Inter ejl 
er  no  Intereft,    Wager. 


STOWAGE. 

1.   Q  T  O  W  A  G  E  is  the  general  difpofition  of  the  feveral  materials  contained 

^  in  a  ffiip's  hold,  with  regard  to  their  figure,  magnitude,  or  folidity. ' 

In  the  ftowage  of  different  articles,  as  ballaft,  cafl<.s,  cafes,  bales,  and  boxes, 
there  are  feveral  general  rules  to  be  obferved,  according  to  the  circumftances 
or  qualities  of  thofe  materials :  the  cafks  which  contain  any  liquid,  are, 
according  to  the  fea  phrafe,  to  be  hung-up  and  bilge  free,  i.  e.  clofely  wedged 
up,  in  an  horizontal  pofition,  and  refting  on  their  quarters  ;  fo  that  the  bilges 
where  they  are  thickeft,  being  entirely  free  all  round,  cannot  rub  againft 
each  other,  by  the  motion  of  the  veffel :  dry  goods,  or  fuch  as  may  be 
damaged  by  the  water,  ard  to  be  carefully  enclofed  in  cafks,  bales,  cafes,  or 
wrappers ;  and  wedged  off  from  the  bottom  and  fides  of  the  fhip,  as  well  as 
from  the  bows,  mafts,  and  pump-well :  due  attention  muff  likewife  be  had  to 
their  difpofition,  with  regard  to  each  other,  and  to  the  trim  and  centre  of 
gravity  of  the  fliip  ;  fo  that  the  heavieft  may  always  be  nearefl  the  keel,  and 
the  lightefl  gradually  above  them. — Falc,  Mar,  Di£l. 


2.  Although  the  city  of  Bourdeaux,  as  well  as  feveral  others  both  in 
France  and  Italy,  \vhcre  wines  are  fliipped,  keep  a  fet  of  fworn  labourers  or 
flowers,  to  ftow  goods  well  aboard  of  fliips,  the  majler  is  not  thereby  freed 
from  fupervifing,  or  being  anfwerabic  for  the  ftowage,  as  fome  of  them  have 
pretended ;  becaufe  the  ftowers  muff  put  them  in  fuch  places  as  the  mafter  or 

his 


STRANDED  AND  STRANDING,   535 

his  officers  direft ;  and  the  infufficicncy  of  fuch  a  plea  was  proved  in  a  law- 
fuit  carried  on  before  the  admirahy  in  Hamburgh  in  1725,  by  Teffier  ao-ainft 
Capt.  Detlof. — 1  Mag.  89. 

3.  If  all  or  a  part  of  the  infured  goods  be,  with  the  confent  of  their 
owner,  or  him  that  caufed  them  to  be  infured,  loaded  on  the  fliip's  deck,  the 
infurers  fliall  not  be  under  any  obligation,  and  yet  be  entitled  to  the  premium. 
— Ordin.  of  Florence. 

4.  If  it  happens  that  a  mafter  over-loads  his  fliip,  or  flows  it  unfkilfully, 
either  in  the  boat,  upon  the  deck,  or  otherwife,  and  that  by  reafon  thereof  he 
is  obliged  to  throw  any  thing  overboard,  run  on  fhore,  or  cut  any  part  away, 
or  the  goods  fuffer  any  damage  by  that  means  ;  the  fame  fliall  be  borne  by 
the  mafter,  owners,  and  (hip,  and  fhall  not  be  brought  into  any  average. — 
Ordin.  of  Antw. 

5.  By  the  nature  of  the  contraft  of  infurance,  the  infiirer  is  anfwerable 
only  for  the  loffes  and  damages  which  happen  by  unavoidable  accidents,  and 
perils  of  the  fea ;  which  are  quite  foreign  to  thofe  which  arife  from  the 
neglects  and  faults  of  mafters  and  mariners : — Loccenius,  de  Jur.  Marit.  1.  2. 
c.  5.  n.  5  &  ID. — It  is  their  negleft  and  fault,  when  goods  have  been  ill 
flowed: — ibid.  n.  12. — Wijbiiy  Laws,  art.  23. — Stracca,  de  Nautis,  par.  3. ;  as, 
if  dry  goods  have  been  placed  under  calks  of  oil,  brandy,  wine,  &c. :  if  the 
Ihip  has  been  over-loaded ;  if  there  has  been  any  pilfering,  alteration  of  the 
goods,  &c. : — Stracca,  ibid. — Guidon,  c.  5.  art.  g  &  10. — Caja  Regis,  difc.  23. 

n.  6^  &yi<J' The  infurers  are  not  anfwerable  in  any  of  thefe   cafes. — ■ 

2  Valins  Comm.  79. 

6.  Remark. — Many  averages  are  demanded  of,  and  paid  by  infurers,  in 
cafes  where  the  damage  has  been  entirely  owing  to  bad  package,  bad  flowage, 
or  both ;  efpecially  when  the  goods  were  of  fuch  a  nature  as  to  damage 
each  other ;  as  the  reader  may  fee  particularly  defcribed  under  title,  Commo- 
dity, p.  io6. 

7.  See  Average,  Commodity,  Corn,  Damage,  Deck,  Document,  Goods, 
Leakage,  Majter,  Negligence,  Over-loading,  Proof,  Protejl. 


STRANDED     AND     STRANDING. 

I,  nr^HERE  having  been  fometimes  a  diverfity  of  ideas  entertained,  by 
-■-  different  perfons  concerned  in  infurances,  and  even  a  trial  at  law  in 
1754  {Cantillon  v.  the  London- AJfurance-Comp any,  which  fee  under  title. 
Corn,  p.  147.)  with  refpeft  to  the  meaning  of  the  term,  ftranded,  in  the  N,  B. 
at  the  foot  of  our  policies  ;  I  infert  here  the  following  authorities,   for  the 

definition  of  it ;    viz. Strand :    the  verge  of  the  fea  or  of  any  water : — 

to 


536   STRANDED  AND  STRANDING. 

io  Jlrand:     to    drive    or   force    upon   the    Ihallows. — John/on  s  DiB. 

Strand,  implies  the  fea-beach  :  hence  a  (hip   is  faid  to  hejiranded,  when  flie 

has  run  aorround  on  the  fea-fhore. — Falc.  Mar.  DiEl. Stranded  (from  the 

Saxon  ftrande,  a  (hore,  or  bank  of  the  fea,  or  any  great  river)  is,  when  any 
fhip  is  either  by  tempeft,  or  ill  fteerage,  run  on  ground,  and  fo  periflies, 
Stat.  17  Car.  1.  c.  14. — Cunninghams  Laxo  Di6l. 

2.  The  N.  B.  at  the  foot  of  our  policies  runs  thus ;  "  Corn,  fifh,  fait, 
iruit,  flour,  and  feed,  are  warranted  free  from  average,  unlefs  general,  or  the 

Jhip  be  Jlrandcd. — Sugar,  tobacco,  hemp,  flax,  hides,  and  flvins,  are  warranted 
free  from  average,  under  five  pounds  per  cent,  and  all  other  goods,  alfo  the 
fliip  and  freight,  are  warranted  free  from  average,  under  three  pounds  per 
cent,  unlefs  general,  or  thejfiip  be  Jlranded" 

3.  As  thofe  kinds  of  goods,  from  their  own  nature  are  fubjeft  to  corrup- 
tion, and  liable  to  fpoil  or  caufe  damage  to  each  other,  the  infurers'  meaning 
plainly  was,  to  be  free  from  d\\  fuch  damage,  yet  not  from  any  lofs  or 
damage  refulting  from  a  fliip's  being  fl:randed :  but,  as  in  the  year  1754  it 
happened  that  a  fliip  laden  with  corn,  in  going  down  the  river,  touched  the 
ground,  which  in  a  law-fuit  againft  the  London-Infurance-Company  was  made 
out  to  be  the  fame  as  if  ftranded ;  and  they  condemned  to  pay  a  confiderable 
damage  found  in  the  cargo  on  board  (the  jury,  it  would  fcem,  taking  it  that 
it  might  be  the  confequence  of  her  having  been  aground,  ,and  becoming 
leaky,  though  it  was  not  immediately  perceived)  the  infurance  companies  now 
in  the  policies  on  thefe  goods,  leave  out  the  words  "  or  the  fliip  be  ftranded," 
and  fo  fubmit  only  to  pay  general  averages  and  total  loffes :  w'hereupon  we 
leave  it  to  be  confidered,  whether  the  confequence  of  this  will  not  be,  that  in 
cafe  of  fiiips  being  fl;randed,  no  endeavours  will  be  made  to  fave  anything, 
although  it  might  be  done  ?■ — 3  Mag.  385, 

4.  When  in  the  policy  there  is  the  claufe  "free  of  average,"  by  which 
tlie  infurers  are  not  liable  in  cafe  of  flranding,  or  other  accidents,  for  any 
damage,  &c.  when  the  fliip  is  got  off,  and  the  ftranding  has  not  been  fo 
complete  as  to  authorife  an  abandonment ;  there  is  a  danger  that  the  captain 
may  be  induced  not  to  trouble  himfelf  about  recovering  the  fliip  from  the 
Ihore,  and  preventing  a  wreck,  as  foon  as  himfelf  and  crew  can  fave  them- 
felves ;  in  order  to  recover  a  total  lofs  from  the  infurers,  not  having  any 
recourfe  againft;  them  but  in  fuch  a  cafe. — 2  Valines  Comm.  102,  114. 

5.  When  a  fliip  runs  afliore,  there  is  no  doubt  but  that  the  infurers  on 
her  are  obliged  to  pay  for  whatever  damage  flie  receives  in  her  hull,  mafts, 
or  breach  of  any  part  by  her  ftranding :  but  then  in  calculating  the  value  of 
the  things  loft  or  damaged,  in  order  to  replace  or  reinftate  them,  proper 
allowances  ought  always  to  be  made  for  the  wear  of  the  things  loft,  and 
confequenily  for  the  difference  in  value  between  them  and  new  ones :  and 
this  appraifement  fliould  be  made  upon  oath  by  fuch  fliipwrights,  rope-makers, 

fail-makers. 


SUGAR.  537 

fall-makers,  and  fliip's  maflers,  as  are  known  to  be  men  of  experience  and 
probity. — i  Mag.  52. 

6.  When  a  fhip  is  ftranded,  the  infurers  upon  the  cargo  are  bound  to 
make  good  all  that  is  damaged,  ftolen,  or  loft;  and  to  pay  all  charges 
occafioned  hyfaving  the  goods  : — and  the  infurers  upon  the  Ihip  are  obliged 
to  pay  the  whole,  or  whatever  is  loft,  or  damaged^  belonging  to  her ;  and  if 
ftie  is  got  off"  again,  all  the  coft,  or  expence  of  faving,  repairing,  and  putting 
her  in  the  fame  good  condition  ftae  was  in  before  her  misfortune. — Ibid.  76. 

7.  If  a  fliip  be  voluntarily  run  aftiore,  in  order  to  avoid  a  total  lofs,  the 
danger  of  fliipwreck,  capture,  &c.  being  imminent,  the  damage  and  charges 
thereby  occafioned  will  be  a  general-average.— Cov/ul.  del  Mare,  c.  192,  193. 
— Roccus,  62,  234, 300. — Ca/a  Regis,  difc.  45.  n,  60  &/eg. — 2  Valin's  Comm.  168. 

8.  See  Abandonment,  Aground,  AJJiore,  Average,  Claim,  Commodity,  Con- 
tribution, Corn,  Damage,  Free  of  Average,  General- Average,  Infujficiency, 
Majler,  PeriJIiable-Commodities ,  Pilot,  Policy,  Reclaim,  Repair,  Salvage,  Sea- 
xoorthy.  Ship,  Shipzoreck,  Total  Lofs,  Wager,  Wear  &  Tear,  Wreck. 


SUBJECT. 

See   Prelim.  Difc.   82.  Enemy,  France,  Laze,   Mafqued  Ship  or  Property. 


S.        U         G         A         R. 


,  M 


ETHOD  of  ftating  a  particular  average  on  fugar  : — viz. 

Suppofe  the  interejl,  or  amount  of  the  prime  coft  and  charges  of  50  hhds.  covered, 
or  valued  in  the  policy  at  20I.  per  hhd.      -----_--.--.   ^1,000 

Suppofe  50  hhds.  weighed  in  Jamaica,  grofs,  700  cwt.  or  -------    /^5.  78,400 

Deduft  the  tare,  which  fuppofe     -----     ----.--_..       5,400 

Leaves,  net    --------------------    /35.  73,000 

But  there  is  a  diminution  of  the  quantity,  or  natural  wajle  during  the  voyage;  the 

cujiomary  eftimation  or  allowance  for  which   is  at  the  rate   of  2  cwt.    per  hhd. 

which  muft  be  deduQed,  making     ---------_-._         11,200 

So  that,  if  they  had  arrived  fafe,  they  would  or  ought  to  have  weighed  net,  at  the 

king's  beam,  in  London  -     ---------------  /^i.  61,800 

But,  being  wafhed  and  damaged  by  fea  water,  they  weighed  there 

only  500  cwt.  grofs,  or     ------------    /^i.  56,000 

Tare  (as  above) --.-.----_..  5,400 

Net --------------....   50,600 

The  lofs  in  ^tan^zVy  is     -.-.---.----...-.  /^5.  11,200 

6  Q  Then 


,338.  SUN        FIRE-OFFICE. 

Then  fav.  if  61,800  Ih.  are  worth  i,oool.;— 11,200/^5.  are  worth  181I.  4s,  jd.  which  is 

the  lofs  on  the  quantity  Wiijlud  out. Befidcs  which,   fuppofc  lliat  of  the  quantity  which 

arrived  there  appears  to  be  300  cwt.  damaged  in  quality;  and  that,  if  the  fugars  had 
arrived  M«^  and  undamaged,  they  would  have  produced  net  (upon  an  accurate  calcu- 
lation) 308.  per  cwt. :  then  the  faid  300  cwt,  would  have  produced  i  loO     o     o 

But,  being  damaged,  they  produced  only  2-s.  per  cwt.  or  405     o     o 

The  lofs  in  yua/zVy,  on  450I.  is £a'3     ^     o 

Then  fay,  if  61,800  lbs.  are  covered  by,  or  valued  at  i.oool. — 300  cwt.  or  33,600  Ibi.  are 
covered  by,  or  valued  at  543I.  13s.  gd. 

And,  if45ol-lofe45l-— 543l-i3s-.9d- willlofe     "     -     -     " £5^     7     5 

To  which  add,  the  lofs  in  quality,  as  before        181     4     7 

The  infurers  mvift  pay £'335   12     o 

Then,  if  i.oool.  lofe  235I.  I2S.— lool,  will  lofe         £2^   11     3 

2.  Remarks. — Proof  ought  to  be  made  that  the  fugar  faid  to  be  loajtied 
out,  and  the  hoglheads  landed  wholly  or  in  part  empty,  were  really  fo ;  and 
that  the  deficiency  and  damage  were,  in  fact,  occafioned  by  fea-water : 
for  experience  hath  (hewn  that  the  weights  indorfed  on  the  bills  of  lading  are 
often  arbitrary,  and  not  to  be  depended  on : — befides  that,  the  fugars  being 
{hipped  new,  the  natural  wafle   during  the   voyage  is  frequently  more  than 

2  cwt.    per  hhd, It  will  not  be  difficult  to  comprehend  this,  and  how 

frequently  unfair  averages  are  demanded  on  fugars,  when  I  mention  that  60 
hhds.  of  this  article,  new,  or  as  it  is  ufually  called  green  (intended  to  be'  fo 
(hipped  for  London,  but  the  proprietor  of  them  being  difappointed  of  the 
veffel)  were  put  into  a  ftore,  or  warehoufe,  at  Jamaica ;  and  lymg  there  about 
two  months,  a6lually  leaked  and  wafled  fo  much  as  to  be  thereby  reduced, 
during  that  fhort  time,  to  the  quantity  of  only  44  hhds. — ■ — With  refpeft  to 
■averao-es  on  fuGfar,  ver\^  erroneous  adiuflments  thereof  are  continuallv  made: 

for  the  fuller  elucidation,  therefore,  of  the  truth  of  the  above  method  of 

flating,  the  reader  is  particularly  referred  to  titles,  Average  and  Market. 

3.  SpE  Abandownent,  Abatement,  Accident,  Average,  Commodity,  Damage, 
Freight,  Goods,  Interejt,  Leakage,  Market,  Perijliable-Commodities ,  Stoxoage, 
Stranded  &  Stranding,  Valuation. 


SUN       FIRE-OFFICE. 


1.  'T'^HIS  fociety  infures  houfes,  and  other  buildings,  goods,  wares,  and 
A  merchandifes,  from  lofs  and  damage  by  Jii'e. And  as  the  ex- 
tending fo  laudable  an  undertaking  (that  every  part  of  the  nation  might  have 
the  benefit  thereof)  was,  in  great  meafure,  owing  to  this  fociety,  they  being 
the  firft  that  attempted  the  infurance  of  goods,  and  that  of  houfes,  beyond  the 
limits  of  the  bills  of  mortality ;    therefore,  in  order  to  render  the  fecurity 

unexceptionable, 


SUN        FIRE-OFFICE.  539 

unexceptionable,  the  fum  of  one  hundred  thou/and  pounds  is  raifed,  to  be  a 
fund  for  that  purpofe. 

2.     Insurances   maybe  made  ^vith  this  fociety  on  the  following  terms 

and  conditions ;— VIZ. 1.  All   policies  fhall  be  figned  and  fealed  by  three 

or  more  truftees  or  afting  members  :  by  which  policies  may  be  infured  houfes 
and  other  buildings,  houfliold  furniture,  prmted  books,  goods,  wares,  mer- 
chandife,  and  utenfils  and  implements  in  trade,  being  the  property  of  the 
perfons  infuring ;  except  all  manner  of  writings,  books  of  accompts,  bills, 
bonds,   tallies,   ready  money,    jewels,   gunpowder,    piQures,    drawings,    and 

prmt^,   not  in  trade. 2.    Houfes,    buildings,     and    goods   in  trujl,    and 

jnerchandife  on  commiffion  (except  as  aforefaid)  may  be  infured,  provided  the 
fame  are  declared  in  the   policy  to  be   in   trufl:  or  on  commiffion,   but  not 

ptherwife. 3.  On  befpeaking  policies,   all  perfons  are  to  depofit  8s.  6d. 

for  the  policy,  ftamp-duty,  and  mark ;  and  (hall  pay  the  premium  to  the 
next  quaiter-day,  and  from  thence  for  one  year  more  at  leaft,  and  fliall,  as 
long  OS  the  managers  agree  to  accept  the  fame,  make  all  future  payments 
annu.iily  at  the  faid  office,  within  fifteen  days  after  the  day  limited  bv  their 
refpeclive  poUcies,  upon  forfeiture  of  the  benefit  thereof;  and  no  infurance 
is  to  take   place  till  the   premium  be  attually  paid  by  the  infured,   his,   her, 

or   their,    agent   or   agents. 1.    The    feveral    heads    of  infurance ;     viz. 

Common  infuranccs  are  buildings  covered  with  flate,  tile,  or  lead,  and  built 
on  all  fides  with  brick  or  (tone,  and  goods  and  merchandife  therein,  not 
hazardous,  and  where  no  hazardous  trades  are  carried  on.  2.  Hazardous 
iiifurances  are  timber  or  plaifler  buildings,  and  goods  and  merchandife  therein, 
not  hazardous ;  or  brick  and  flone  buildings,  wherein  hazardous  goods  or 
trades  are  depofited  or  carried  on  ;  fuch  as  apothecaries,  coopers,  bread  and 
bifcuit-bakers,  colour-men,  (hip  and  tallow-chandlers,  flable-keepers,  inn- 
holders,  fail  and  rope-makers,  malt-houfes,  hemp,  ftax,  tallow,  pitch,  tar, 
and  turpentine.  3.  Doubly  hazardous  infuranccs  are  thatched  buildings, 
and  goods  and  merchandife  therein ;  timber  or  plailler  buildings,  wherein 
hazardous  goods  or  trades  are  depofited  or  carried  on  ;  alfo  chemifts,  fhip- 
carpenters,   boat-builders,    china,    glafs,   or  earthen  wares,   hay,    (haw,    all 

manner  of  fodder,   and  corn  unthraflied. 5.    Any  number  of  houfes,  out- 

houfes,  houlhold  furniture,  printed  books,  ftock  in  trade,  goods  in  truft  or 
on  commiffion,  or  wearing  apparel,  and  plate  therein,  may  be  infured  in 
one  policy,  provided  the  funi  infured  on  each  is  particularly  mentioned,  and 
in  the  infuranccs  the  premium  is  to  be  paid  for  every  hundred  pounds :  and 
if  infuranccs  are  defired  for  mills,  a  fpecial  agreement  may  be  made  for  the 
fame,  or  any  larger  fums  than  are  fpecified-  in  the  table,  or  for  any  other 
infuranccs  more  hazardous  than  thofe  before  defcribed  (as  fugar-bakers, 
difiillers,  or  fuch  like)  by  reafon  of  the  nature  of  the  trade  or  goods,  narrowncfs 

of  the  place,   or  other  daagerous  circumflances. 5.  To  prevent  frauds, 

perfons  infured  by  this  office  ffiall  receive  no  benefit  from  their  policies,  if 
the  fame  houfes  or  goods,  &c.  are  infured  in  any  other  office,  unlcfs  fuch 
infurance  be  firfi:  fpecificd  and  allowed  by  an  indorfement  on  the  back  of  the. 

polic}'. 


540 


SUN        FIRE-OFFICE. 


policy,  in  which  cafe  this  office  will  pay  their  ratable  proportion  on  any  lofs 
or  damage ;  and  if  any  perfon  or  perfons  (hall  infure  his,  her,  or  their, 
houfes,  goods,  wares,  or  merchandifes,  and  (hall  caufe  the  fame  to  be 
defcribed  in  the  policy  otherwife  than  as  they  really  are,  fo  as  the  fame  be 
infured  at  a  lower  premium  than  propofed  in  the  table ;  fuch  infurance  Ihall 
be  of  no  force,  nor  the  perfon  infuring  receive  any  benefit  by  fuch  policy,  in 

cafe  of  any  lofs  or  damage. 7.   No  lofs  or  damage  to  be  paid  on  fire 

happening  by  any  inva/ion,  foreign  enemy,    civil  commotion,   or  any  military 

or  iifurped  power  whatever. 8.   When  any  perfon  dies,   the  policy  and 

interefl  therein  fhall  continue  to  the  heir,  executor,  or  adminiftrator, 
refpeftively,  to  whom  the  right  of  the  premifes  infured  fliall  belong  ;  pro- 
vided, before  any  new  payment  made,  fuch  heir,  executor,  or  adminiftrator, 
do  procure  his  or  her  right  to  be  indorfcd  on  the  policy,  at  the  laid  office,  or 
the  premium  be  paid  in  the  name  of  the  faid  heir,  executor,  or  adminiiirator. 

9.  Perfons  changing  their  habitation  or  warehoufes,    may  preferve  the 

benefit  of  their  policies,  if  the  nature  and  circumftances  of  fuch  policy  is  not 
altered ;  but  fuch  infurance  will  be  of  no  force  till  fuch  removal  or  alteration 
is  allowed  at  the  office,  by  indorfement  on  the  policy.  Infurances  on 
buildings  and  goods  are  deemed  diftinft  and  feparate  rifques ;  fo  that  the 
premium  on  goods  is  not  advanced  by  reafon  of  any  infurance  on  the  building 
wherein  the  goods  are  kept,  nor  the  premium  on  tlie  buildings  by  reafon  of 

any  infurance  on  the  goods. 10.   Perfons  infured,   fuftaining  any  lofs  or 

damage  by  fire,  are  forthwith  to  give  notice  thereof  at  the  office,  and  as  foon 
as  poffible  afterwards  deliver  in  as  particular  an  account  of  their  lofs  and 
damage  as  the  nature  of  the  cafe  will  admit  of,  and  make  proof  of  the  fame 
by  their  oath  or  affirmation,  according  to  the  form  praftifed  in  the  faid  office, 
and  by  their  books  of  accompts,  or  other  proper  vouchers,  as  ffiall  be  reafon- 
ably  required,  and  produce  a  certificate  under  the  hands  of  the  minifter  and 
churchwardens,  together  with  fome  other  refpe6tab!e  inhabitants  of  the  pariffi, 
not  concerned  in  fuch  lofs,  importing,  that  they  are  well  acquainted  with  the 
character  and  circumftances  of  the  perfon  or  perfons  infured,  and  do  know 
or  verily  believe,  that  he,  ffie,  or  they,  really  and  by  misfortune,  without 
any  fraud  or  evil  pra6lice,  have  fuftained,  by  fuch  fire,  the  lofs  and  damage, 
as  his,  her,  or  their  lofs,  to  the  value  therein  mentioned  -,  but,  till  fuch 
affidavit  and  certificate  of  fuch  the  infured's  lofs  fliall  be  made  and  produced, 
the  lofs-money  ffiall  not  be  payable  :  and  if  there  appear  any  fraud  or  falfe 
fwearing,  fuch  fufferers  ffiall  be  excluded  from  all  benefit  by  their  policies : 
and  in  cafe  any  difference  arife  between  the  office  and  the  infured,  touching 
any  lofs  or  damage,  fuch  difference  ffiall  be  fubmitted  to  the  judgment  and 
determination  of  arbitrators  indifferently  chofen,  whofe  award,  in  writing, 
ffiall  be  conclufive  and  binding  to  all  parties :  and  when  any  lofs  or  damage 
is  fettled  and  adjufted,    the  infured  are  to  receive  immediate  fatisfaftion  for 

the  fame,  deduEling  only  the  ufual  allowance  of  3I.  per  cent. 1 1.  In  adjuftlng 

loffes  on  houfes  or  goods,  no  wainfcot,  or  any  fculpture  or  carved  work,  is 
to  be  valued  at  more  than  gs.  per  yard,    or  plate  at  more  than  5s.  6d.  per 

ounce. 12.  To  encourage  the  removal  of  goods  in  cafes  of  fire,  this  office 

will 


SUN        FIRE 


OFFICE. 


54 » 


Avill  allow  the  reafonable  charges  attending  the   fame,    and  make  good  the 

fufferer's  lofs,  whether  deilroyed,  lolt,  or  damaged,  by  fuch  removal. 13. 

No  receipts  are  to  be  taken  for  any  premiums  of  infurance,  but  fuch  as  are 
printed,   and  iffued  from  the  office,   and  witnefled  by  one  of  the  clerks  or 

agents  of  the  office. 14.  For  the  further  encouragement  of  perfons  infuring, 

there  are  provided  feveral  fire-engines,  and  there  are  alfo  employed  in  the 
fervice  of  the  faid  office  (within  the  bills  of  mortality)  thirty  able-bodied 
firemen,  clothed  in  blue  liveries,  having  filver  badges  with  the  fun  mark 
upon  their  arms  ;  and  tioenty  able  porters,  likewife  wearing  filver  badges  with 
the  fun  mark,  who  are  always  ready  to  affift  in  quenching  fires  and  removing 
goods,  having  given  bonds  for  their  fidelity  :  and  alfo,  all  cities  and  great 
towns  may  receive  affiftance  and  encouragement  for  purchafing  engines  and 
proper  machines  for  putting  out  fires,  upon  application  to  the  faid  office, 
agreeable  to  the  number  of  infurances  made  by  this  office  in  fuch  refpeftive 

cities  or  great  towns. 15.  For  the  eafe  and  conveniency  of  the  inhabitants 

oi  xhc  ciVf  o^  Wefiyninfier  and  places  adjacent,  this  fociety  has  an  office  in 
Craig  s-Court,  Charing-Crofs ;  where,  as  well  as  at  their  office  in  Cornhill, 
near  the  Royal-Exchange,  daily  attendance  is  given. 

3,     Table  of  Annual  Premiums  to  be  paid  for  Infurances. 


Sums  infured. 


Any   Sum 
Not  exceeding        lool. 
From      200I  to  i.oool. 
From  i,oool.  to  2,oooI- 
From  2.000I.  to  3,000!. 


Common  Infurances, 


2s.  per.  ann. 
2s.  percent. 
2s.  6d.  per  cent. 
2s.  6d.  percent.. 


per 
ann. 


Hazardous  Infurances. 


3s.  per  ann. 

OS.  per  cent  , 

4s.  per  cent.)' 

^     '  ^  ann. 

5s.  percent.. 


DouI)ly  hazardouJ 
lafuianccs. 


5s.  per  ann. 
5s.  percent. 
7s.  6d.  per 
cent. 


N.  B.  Perfons  may  infure  for  any  number  of  yean  more  than  one  ;  and  in  fuch  cafe, 
there  will  be  an  abatement  of  fi.x-pence  in  the  pound  per  annum  on  the  premiums  agreed 
for,  for  every  year  except  the  firfl :  as  to  inftance  in  a  common  infurance  of  i,oool.  for 
feven  years,  the  premium  to  be  paid,  by  the  table,  will  be  feven  pounds,  in  which  fix-pence 
in  the  pound  per  annum  is  to  be  deduded  for  the  lad  fix  years,  that  is,  three  (liillings  and 
fix-pence  per  annum,  which  amounts  to  one  pound  one  fhilling,  and  reduces  the  fum  to 
be  paid  to  five  pounds  nineteen  fliillings ;  and  the  fame  in  proportion  for  any  other  fum  or 
number  of  years;  and  perfons  infuring  can  never  be  fubjeft  to  any  calls  or  contributions  to 
make  good  lofTes. 

A,     See  Company,  Fire,  Society. 


^^1 


6  R 


TENDER 


T. 


TENDER      OF      MONEY. 

1.  "X"  "TT  "THEN  it  happens  that  the  demand  of  the  infured,  for  a  lofs, 
V/  V/  average,  &c.  is  contefted  or  objected  to  by  the  infurer,  but 
that  the  latter  acknowledges  or  admits  that  the  premium 
fliould  be  returned,  or  any  certain  fum  lefs  than  the  infured  demands  fhould 
be  paid  to  him  ;  it  is  in  fuch  cafes  frequently  advifable,  that  the  infurer 
make  a  tender  of  the  money  which  he  admits  to  be  due,  before  the  aftion 
be  brought  againfl  him,  in  order  to  avoid  the  incurring  of  cofts : — — for  "  if 
after  tender  and  refufal  of  a  debt,  the  creditor  harrafles  his  debtor  with  an 
aftion,  the  latter  may  plead  the  tender ;  adding  that  he  has  always  been 
ready,  tout  temps  prijl,  and  is  flill  ready,  u7icore  priji,  to  difcharge  it :  for  a 
tender  by  the  debtor,  and  refufal  by  the  creditor,  will  in  all  cafes  difcharge 
the  cofts,  but  not  the  debt  itfelf ;  though  in  fome  particular  cafes  the  creditor 
will  totally  lofe  his  money : — but  frequently  the  defendant  confelTes  one  part 
of  the  complaint  (by  a  cognovit  aElionem  in  refpeft  thereof)  and  traverfes  or 
denies  the  reft ;  in  order  to  avoid  the  expence  of  carrying  that  part  to  a 
formal  trial,  which  he  has  no  ground  to  Utigate : — a  fpecies  of  this  fort  of 
confeflion  is  payment  of  money  into  court ;  which  is  for  the  moft  part  necef- 
fary  upon  pleading  a  tender,  and  is  itfelf  a  kind  of  tender  to  the  plaintiff; 
by  paying  into  the  hands  of  the  proper  officer  of  the  court  as  much  as  the 
defendant  acknowledges  to  be  due,  together  with  the  cofts  hitherto  incurred, 
in  order  to  prevent  the  expence  of  any  further  proceedings  :■ — if  after  the 
money  paid  in,  the  plaintiff^  proceeds  in  his  fuit,  it  is  at  his  own  peril ;  for,  if 
he  does  not  prove  more  due  than  is  fo  paid  into  court,  he  ftiall  be  nonfuited 
and  pay  the  defendant  cofts  ;  but  he  ftiall  ftill  have  the  money  fo  paid  in,  for 
that  the  defendant  has  acknowledged  to  be  his  due. — To  this  head  may  be 
referred  the  praftice  of  what  is  called  a  fctt-off ;  whereby  the  defendant 
acknowledges  the  juftice  of  the  plaintiff's  demand  ;  but  on  the  other  hand 
fets  up  a  demand  of  his  own  to  counter-balance  that  of  the  plaintiff,  either  in 
whole  or  in  part ;  and,  in  cafe  he  pleads  fuch  fet-offj  muft  pay  the  remaining 
balance  into  court :  this  anfwers  very  nearly  to  the  compenfatio,  or  floppage, 
of  the  civil  law,  and  depends  on  the  ftat.  2  Geo,  2.  c.  22.  and  8  Geo.  2.  c.  24. 
-^3  Black.  Comm.  303. 

2.      UPODf 


T  H  E  F  t.  ^43 

2.  Upon  tender  of  money  the  following  points  fliould  be  obferved;  viz, 
— 1.  it  fliould  be  tendered  in  lawful  Englifh  money,  not  in  foreign  money,  or 
Englilh  noies  : — 2.  it  fliould  be  of  the  very  fum  that  is  due,  neither  more  nor 
lefs : — 3.  it  muft  be  a  real  and  aftual  tender,  by  holding  out  the  hand  towards 
the  party,  with  the  money  in  it,  and  not  in  a  bag,  or  the  like ;  and  therefore  a 
mere  faying,  I  will  pay  you  fo  and  fo,  is  no  tender :—/[.  it  fiiall  be  done  in  the 
prefence  of  a  witnefs. — Clark's  Epit.  of  Com.  Lau\ 

3.  ^-Ls.  Payment,  Return. 

THEFT. 


1 


IF  there  be  thieves  on  fliip  board  among  themfelves,  the  majlcr  of  the 
fliip  is  to  anfwer  for  that,  and  not  the  infurer ;  though  the  words  of  the 
policy  infures  againft  lofles  by  thieves,  yet  they  are  to  be  intended  ajfailing 
thieves. — Malynes'  Lex  Merc.  c.  25. 

2.  Goods  being  ftolen,  are  the  infurers  liable  to  make  indemnification? 
— ^Various  and  vague  anfwers  have  been  given  to  this  queftion  ;  but  in  order 
10  give  fuch  as  may  be  decifive  and  conformable  to  praElice,  let  us  advert  to 
the  following  cafes: — 1.  when  robbery  is  committed  on  the  high  fea  by 
pirates  and  rovers,  this  is  accounted  among  accidents  or  misfortunes ;  the 
infurer  therefore  who  undertakes  to  guard  againft  thefe,  is  bound  to  anfwer 
for  the  robbery  :  the  reafonablenefs  of  this  decifion  is  apparent  from  robberies, 
piracies,  inroads  of  enemies,  fliipwrecks,  and  conflagrations,  being  equally 
confidered  as  accidents  ;  which  therefore  come  within  the  infurance  ;  but  this 
is  to  be  underflood  only  while  the  mafler  of  a  veffel  is  not  in  fault ;  for 
fliould  he  venture  in  places  which  he  knows  to  be  infefted  with  pirates  and 
free-booters,  he  then  would  aft  at  his  own  peril ;  and  ftrefs  of  weather  is  the 
only  cafe  wherein  he  would  become  excufable  for  fuch  conduft : — 2.  when  a 
theft  is  committed  on  board  the  fliip,  and  fome  goods  have  been  ftolen ;  then 
the  infurers  are  not  bound  ;  becaufe  the  owner  of  the  goods,  as  much  as  in 
him  lies,  is  obliged  to  take  care  of  them  ;  and  if  they  are  ftolen  Avhile  in  the 
veffel,  this  cannot  be  called  an  accident,  but  has  happened  through  the 
negligence  of  thofe  who  did  not  take  proper  care  of  them  ;  for  nothing  can 
be  claffed  among  accidents  that  does  not  happen  in  a  public  place  :  another 
reafon  why  the  infurer  is  not  bound  is,  becaufe  the  majler  of  the  fliip  is  held 
anfwcrable  for  thefts  committed  therein  ;  as  by  receiving  the  goods  on  board, 
he  enters  into  a  tacit  agreement  to  deliver  them  fafe  and  whole  : — 3.  when  a 
theft  has  been  committed  during  the  night,  by  land  robbers,  while  the  veffel 
is  in  port ;  and  then  it  feems  the  infurer  is  not  bound  ;  fuch  kind  of  pilferers 
being  different  from  pirates :  this  doftrine  holds  good  in  infurances  made 
againft  fliipwrcck,  hoftile  incurfions,  and  pirates,  and  where  no  mention  is 
made  of  fuch  land  robbers  :  but  when  the  infurance  is  made  general,  againft  all 
accidents,  and  that  the  cargo  fliall  be.fafely  landed  at  any  particular  place,  in 

that 


544  T  I  M        ■    E. 

that  cafe  the  infurer  is  bound  to  indemnify  from  lofTes  by  thieves,  while  the 
veflel  is  in  port,  and  for  all  poffible  damages  that  may  happen  during  the 
voyage. — Roccus,  191,  192,  194.  not.  41,  42,  43. 

3.  By  Stat.  24  Geo.  2.  C.  45. — Every  perfon  that  (hall  felonioufly  fleal 
any  goods,  wares,  or  merchandife,  of  the  value  of  40s.  in  any  fhip,  barge, 
lighter,  boat,  or  other  vefTel  or  craft  upon  any  navigable  river,  or  in  any  port 
of  entry  or  difcharge,  or  in  any  creek  belonging  to  any  navigable  river, 
port  of  entry  or  difcharge,  within  Great-Britain  ;  or  upon  any  wharf  or  key 
adjacent  to  any  navigable  river,  port  of  entry  or  difcharge,  or  {hall  be  prefent 
and  aflTifting  in  committing  any  of  the  offences  aforefaid,  being  convifted,  &c. 
fhall  be  excluded  from  the  benefit  of  clergy. 

4.  See  Accident,  Barratry,  Damage,  Embezzlement,  Mariner,  Mafler, 
Negligence,  Pirate,  Rifque,  Robbery,  Salvage,  Stranding,  Wreck. 


TIME. 

I.  TN  England,  fliips  are  frequently  infured  for  a  certain  limited  time, 
-*-  as  3,  6,  9,  12  months,  and  fometimes  longer,  inftead  of  each  voyage : 
— there  is  reafon  to  think  that  this  method  generally  turns  out  to  the 
difadvantage  of  the  infurers,  and  to  the  benefit  of  the  owners ;  becaufe  the 
vefTels  fo  infured  are  chiefly  coafters,  colliers,  or  intended  for  hazardous 
navigation,  during  the  term  of  the  policy,  either  as  to  the  feafon  of  the 
year,  or  the  feas  they  go  to,  or  both,  as  the  eafiiern  and  northern  feas,  in  the 
winter,  and  other  unfavourable  circumflances  ;  and  befides,  fuch  veflels  are 
commonly  ill-fitted  and  (lored  with  anchors,  cables,  fails,  &c.  and  ineligible, 
as  to  their  built,  age,  repair,  and  other  qualities ;  nor  are  the  premiums 
ufually  given  on  them  more  than  adequate  to  the  rifque  of  the  frequent 
damages  (exclufive  of  total  lofs)  to  which  they  are  liable  during  the  term, 
and  which  muft  be  as  repeatedly  repaired  at  the  charge  of  the  underwriters. 

T It  is  alfo  to  be  obferved  that,  if  the  previium  inferted  in  the  policy,  be  at 

15,  20  fliillings,  &c.  per  month,  it  is  moft  likely  the  infured  means  to  have  a 
return  of  premium,  at  the  fame  rate,  for  fo  many  months  as  (hall  be 
unexpired,  at  the  time  a  total  lofs  or  other  incapacity  of  the  fhip  may  happen; 
^nd  fometimes  the  like  return  has  been  applied  for,  even  after  the  moll 
hazardous  part  of  the  rifque  has  been  run,  on  pretence  of  the  vefTel  being  laid 
up,  or  the  like  :  therefore  it  is  more  reafonable  to  fix  the  premium  for  the 
whole  time  (as  for  an  entire  voyage)  in  which  cafe,  as  foon  as  the  rifque 
commences,  the  whole  premium  may  be  retained,  without  any  return. 

2.  Formerly  the  greater  part  of  infurances  were  made  for  a  certain 
time,  and  by  the  month  ;  as  appears  by  the  GuidoJi,  c.  1.  art,  i,  &c. : — the 
premium  was  always  paid  beforehand  ;  and  if  the  vefTel  was  not  returned 
vithin  the  time  limited  by  the  infurance,  it  was  often  prolonged  for  a  further 

time, 


TOTAL        LOSS. 


M5 


time,  by  means  of  a  frefh  premium  : — at  firft,  this  method  feemed  to  be 
advantageous  enough  to  the  affured,  becaufe  they  fcldom  made  infurance  but 
for  the  molt  dangerous  months  ;  but  the  Jews,  habitually  ufurious,  who  had 
invented  the  praftice  of  infurance,  turned  it  fo  well  to  their  account,  by 
exafting  exorbitant  premiums,  that  the  cuftom  of  making  it  for  time,  having 
become  very  chargeable  to  the  afl'ured,  and  withal  fubjeft  to  great  difputes, 
declined  by  degrees,  and  at  laft  entirely  ceafed  in  France  ;  where  this  fort  of 
infurance  is  now  very  rarely  made,  except  on  veflels  employed  in  the 
fifheries,  and  on  privateers. — 2  Valins  Comm.  48,  51,  86. 

3.  Case, — Policy  of  affurance  to  warrant  a  fhip  for  twelve  months:  the 
fliip  did  not  perifh  within  the  time  of  twelve  months,  being  accounted  calendar 
months,  as  January,  February,  &c.  but  within  twelve  months,  reckoning 
twenty-eight  days  to  the  month.  Refolved  that  the  policy  was  not  forfeited. 
— Cited  in  Sir  Woollajlon  Dexeys  cafe.     1  Leon.  96.     Molloy,  b.  2. 

4.  Remark. — It  is  now  ufual,  in  policies  on  fhips,  lives,  &c.  infured  for 
any  ftipulated  time,  to  infert  thefe  words,  viz.  "  the  firfl;  and  lafl  days 
included  :" — and,  if  the  infurance  be  for  a  month,  or  number  of  months,  to 
exprefs  "  calendar  months." 

5.  See  Prelim.  Difc.  46.  Abandonment,  Commencement  of  Voyage  or 
Rifque,  Cruife,  End  of  Voyage  or  Rifque,  Infurance,  Limitation,  Lives,  Lofs, 
Premium,  Return,  Rifque,  Secfon,  Ufage. 


TOTAL  LOSS. 

1.  'T^  H  E  words,  total  lofs,  are  not  always  to  be  underftood  as  meaning 
-^  that  the  fliip,  goods,  or  effe6ls  are  entirely  and  irrecoverably  gone 
or  perifhed  ;  but  fometimes  that  they  are  fallen  into  fuch  a  fituation  or 
condition,  through  fome  of  the  perils  and  accidents  againft  which  they  were 
infured,  as  capture,  fiipxoreck,  bulging,  flranding,  detention  oi'  princes,  &c.  as 
to  authorife  the  infured  to  give  up  or  abandon  their  right  or  interefl  in  them  to 
the  infurers,  and  to  recover  the  full  value  infured,  as  for  a  total  lofs;  under 
the  obligation,  neverthelefs,  to  remain  accountable  to  the  infurers  for  the 
whole  or  fuch  part  of  the  effefts,  or  their  produce,  as  may  thereafter  be 
faved  and  come  to  the  hands  of  the  infured,  after  dedufting  all  the  charges 
which  have  been  incurred. 

2.  But  although  the  foreign  ordinances  in  general,  and  other  authorities 
allow  abandonment  to  be  made  in  the  cafes  abovementioned  (as  may  be  feen 
under  title,  abandonment)  yet  it  does  not  follow  from  thence  that  it  is  allow- 
able, and  that  the  infured  may  recover  as  for  a  total  lofs,  in  all  thofe  cafes 
indifcriminately. 

6  S  .3-    Lord 


546  TOTAL         LOSS. 

3.  Lord  Mansfield  faid,  "  Abandonment  depends  on  a  variety  of  circum- 
flances ;"  ( Eguino  \ .  Hodgfon ;  itQ  falvagc): — and,  "the  merchant  cannot 
elecl  to  turn  what,  at  the  time  when  it  happened,  was  in  it's  nature  but  an 
average  lofs,  into  a  total  one,  by  abandoning ; — the  nature  of  tlie  contract  as 
an  indemnity,   and  nothing  elfe,   is  always  liberally  confidered :" — (Gofs  & 

Withers  ; — 2  Burr.  683). '"If  at  the  time  of  the  aftion  brought,  at  the  time 

of  the  aflured's  offer  to  abandon,  and  at  the  time  he  was  firft  apprized  of  any 
accident  having  happened,  he  had  only,  in  truth,  fuftained  an  average  lofs, 
he  ought  not  to  recover  for  a  total  one  : — the  plaintiff's  aftion  mull  be  founded 
upon  the  nature  of  his  damnification,  as  it  really  is,  at  the  time  of  the  aftion 
brought :  it  is  repugnant,  upon  a  contratl  of  indemnity,  to  recover  for  a 
total  lofs,  when  the  final  event  has  decided  that  the  damnification,  in  truth, 
is  an  average,  or  perhaps  no  lofs  at  all :  whatever  undoes  the  damnification, 
in  whole  or  in  part,  muff  operate  upon  the  indemnity  in  the  fame  degree  : — 
the  infured  is  not  obliged  to  abandon  in  any  cafe  ;  he  has  an  eleftion ;  he 
cannot  eleft  before  advice  is  received  of  the  lofs ;  and  if  that  advice  (hews 
the  peril  to  be  over,  and  the  thing  in  fafety,  he  cannot  ele6i:  at  all ;  becaufe 
he  has  no  right  to  abandon  when  the  thing  is  fafe  ; — all  the  writers  upon 
the  marine  law  feem  to  agree,  that  "  if  the  thing  is  recovered  before  the 
money   paid,    the    infured    can    only   be    entitled    according  to   the   final 

event:" if   the  voyage  is  abfolutely  loft,  or  not  worth  purfuing;   if  the 

fcdvage  is  very  high;  if  further  expence  is  neceffary;  if  the  infurer  will 
not  engage,  in  all  events,  to  bear  that  expence,  though  it  fhould  exceed 
the  value  or  fail  of  fuccefs ;  under  thefe  and  many  other  like  circumftances, 
the  infured  may  difentangle  himfelf  and  abandon,  notwithftanding  there 
has  been  a  recapture  : — but  the  point  here  determined  is,  that  "  the  plaintiff, 
upon  a  policy,  can  only  recover  an  indemnity,  according  to  the  nature  of  his 
cafe,  at  the  time  of  the  aftion  brought,  or,  at  moft,  at  the  time  of  his  offer 
to  abandon." — Hmielton  v.  Mendes. — 2  Burr.  1198. 

4.     In   the   cafe   of  capture,    whether  it  be  juft   or  unjuft,     there   is   no 

diftin6lion  to  be  made  between  the  fliip  and  the  cargo,   all  being  taken ;   and 

the  hope  of  reftitution,    in  the  cafe  of  an  unjuft  capture,    is  not  a  reafon  for 

excluding   or   retarding  the    abandonment ; — in  the   cafe    of  JJiipxoreck   and 

bulging,  abandonment  is  allowable,  with  refpeft  to  xhejliip,  becaufe  under  fuch 

circumftances  it  is  irrecoverably  loft :    but  it  may  happen  that  the  goods  are 

faved,   fo  as  to  have  received  but  litde  damage  ;    which  being  verified,    the 

infurers  cannot  be  obliged  to  accept  an  abandonment  of  them,   but  only  to  pay 

\\\^  average,  if  they  offer  to  convey  them  fpeedily  to  the  place  of  their  deftina- 

tion: — in  the  cafe  of  ^\T!\y^\tJlrandiy\g,  what  is  above  faid  holds  good,  not  only 

with  refpccl  to  the  merchandifes  which  may  be  only  damaged  in  part,   but 

alfo  in  regard  to  xh^JJiip,  if  there  be  means  of  getting  her  oft,  and  of  putting 

her  in  a  condition  to  navigate,  by  a  repair :  it  is  the  intereft  of  the  infurers 

to  reduce  to  averages,  as  much  as  they  can,   all  the  damages  which  happen 

to  the  fhip  and  goods,  becaufe  the  infurance  does  not  oblige  them  to  make 

good  the  value  given  to  the  fhip  or  the  goods  indifcriminately ;  but  only  to 

indemnify 


TOTAL        LOSS.  547 

iudemnify  the  alTured  for  the  loITes  and  damages  which  they  fl^all  fufFer  by 
marine  accidents :— now,  as  to  the  7?^?/',  it  is  unqueRionable  that  her  value 
is  confiderably  diminifhed  by  wear  and  tear,  during  the  courfe  of  a  long 
voyage,  however  fortun-Jte  it  may  have  been  :  but,  as  the  infurers  are  by  no 
means  obliged  to  make  good  to  the  infured  fuch  diminution  of  the  fliips  value 
at  her  fafe  arrival,  neither  can  they  be  held  to  do  fo  in  the  cafe  of  fimple 
ftranding ;  and  all  that  can  be  required  of  them  is,  to  put  her  in  a  conaitiori 
to  ferve  again,  by  repairing  the  damage  flie  hath  received  by  the  flrandinr : 
— it  is  enough  that,  in  cafe  ol  Jliipicreck  and  bulging,  they  are  liable  to  pay  the 
fum  at  which  the  fhip  hath  been  lawfully  valued  in  the  policy,  without  any 
deduftion  by  reafon  of  the  diminution  which  flie  mull  have  neceffarily  fuffered 
in  her  value  during  the  voyage,  to  the  time  of  the  fliipwreck  :  it  is  enough, 
I  fay,  that  they  then  fupport  the  lofs  entire  ;  and  it  is  not  conceivable,  when 
the  fiiip  has  no  freight  to  recover,  how  the  cuflorn  has  been  eflabiinied,  of 
not  making  any  deduclion  in  fuch  cafe,  fmce  the  infurers  are  anfwerablo  only 
for  unavoidable  accidents,  and  not  for  t\\t  pcriJJiable  nature  o{  xhc  ^hing,  or 

the  diminution  it  fuffers  merely  by  ufe  : in  like  manner,   in  regard  to  the 

goods,  the  infurers  do  not  warrant  that  they  fliall  be  fold  on  their  arrival  in 
fafety  at  the  price  eflimated  in  the  policy,  or  at  which  they  may  have  been 
bought ;  they  anfwer  fimply  for  the  lofs  they  may  have  fuffered  by  accidents  : 
therefore  whenever  the  goods  are  damaged  only  to  a  certain  degree,  the  infurer 
is  at  liberty  to  refufe  an  at)andonmcnt,  by  fubmitting  to  pay  the  averao-e  : — • 
with    refpeft   to    perijliable    commodities,    and  detention    (fee    under   ihofe 

titles). Befidcs  the  cafes  aforementioned,  a  total  lofs  of  the  eftefts  infured 

may  happen  by  jettifon,  fire,  robbery,  llorm,  or  other  marine  accident ; 
in  which  cafes  the  infured  has  unqueftionably  a  right  to  demand  payment  of 
the  infurance  : — but  ought  thefe  words,  total  lofs,  to  be  taken  rigoroufly,  and 
literally  ?  or  do  they  not  admit  of  interpretation,  fo  that  the  lofs  may  be 
reputed  total,  if,  by  means  of  the  average,  there  is  no  longer  a  proportion 
between  the  value  of  the  effe6ls  at  the  time  of  loading  them,  and  that  which 
they  have  after  the  damage  they  have  fuflained? — and  upon  this  point,  I 
would  take  for  a  rule,  art.  1.  c.  7.  of  the  Guidon,  which  admits  abandonment 
"when  the  damage  exceeds  half  the  value  of  the  thing:" — this  rule,  however, 
can  only  be  applied  to  goods  really  damaged  ;  but  not  to  thofe,  a  part  of  which 
have  been  loft  by  jettifon,  fire,  robbery,  or  otherwife,  and  the  other  part  of  them 
preferved  without  damage  :  and  even  in  cafe  of  damage  to  two  of  three  bales,  or 
cad-LS  of  indigo,  fugar,  &c.  the  infured  cannot  oblige  the  infurer  to  accept  an 
abandonment  of  the  third  bale  or  cafl^,  not  damaged,  without  thofe  which  are 
fo  ;  but  the  infurer  may  infift  either  that  the  abandonment  be  made  of  the  whole, 
or  that  the  infured  be  fatisfied  with  payment  of  the  average  ; — unlcfs  the  whole 

are  fo  much  damaged  as  not  to  be  worth  half  their  firft  coft. It  is  true  that 

the  practice  is,  to  make  abandonment  to  the  infurers  as  foon  as  a  Ihip  is 
wrecked  or  bulged,  and  that  thefe  commonly  accept  it  without  enquirin<T 
what  hath  been  the  fate  of  the  goods;  but  this  decides  not  in  point  of  right, 
nor  at  all  prevents  the  alleging  that  the  abandonment  is  not  allowable,  when 
by  the  event  the  goods  faved  are  in  fuch  a  ftate,    as  that  the  lofs  may  be 

reduced 


548  TOUCHING. 

reduced  to  an  indemnification  by  way  of  average. Except  the  cafe  of 

abandonment,  every  damage  which  happens  to  the  fhip  or  the  goods  is  only 
an  average: — the  infurers  have  no  right  to  demand  an  abandonment ;  it  is, 
with  refpeft  to  them,  purely  palTive ;  they  have  only  the  right  of  contefting 
it,  if  it  is  not  made  as  it  ought  to  be  :  it  depends  on  the  alfured  to  make  it  or 
not ;  no  law  can  oblige  him  to  do  it,  it  is  only  a  power  which  is  given  him 
by  law ;  he  may  therefore  decline  it,  and  only  demand  the  averages  :  it  is 
a  principle  of  law,  not  to  turn  it  againfl  him  in  whofe  favour  it  is  made. — 
2  Valins  Comjn.    loo  to  107. 

5.  Sez  Alfandofiment,  Accident,  Average,  Capture,  Com,  Cruife,  Damage, 
Declaration,  Detention,  Free  of  Average,  Freight,  Infufficiency,  Interejl, 
Intercjl  or  no  Interejt,  Lofs,  Peafe,  Peri/Iiable-Commodities,  Ran/'om,  Recap- 
ture, Repair,  Salvage,  Ship,  Shipwreck,  Stranding,  Valuation,  Wear  and 
Tear,  Wreck. 


TOUCHING. 

1.  T^HE  printed  words  in  our  policies,  viz.—"  and  it  fhall  be  lawful  for 
"*-  the  faid  fiiip,  in  this  voyage,  to  proceed  and  fail  to,  or  flay  at  any 
ports  or  places  whatfoever,"  are  not  to  be  underflood  literally  or  abfolutely  ; 
— but  the  proper  conJlruElion  of  them  is,  that  it  fhall  be  lawful,  &c.  in  cafe 
of  necejpty  or  jufl  caufe ;  fuch  as  to  avoid  imminent  danger  of  fliipwreck, 
ftranding,  or  capture,  or  through  contrary  winds,  florm,  fpringing  a  leak, 
damages  needing  repair,  and  the  like  ; — for,  otherwife,  the  fmalleft  voluntary 
alteration  of  the  direct  courfe  of  the  voyage,  as  defcribed  in  the  policy  would 
be  a  deviation,  which  would  from  that  moment  determine  the  rifque  of  the 
infurers ;  and  therefore,  in  order  to  avoid  this  effeft,  we  frequently  fee 
written  with  the  pen,  after  the  above-mentioned  printed  claufe,  thefe  words, 
viz.  "  zoithout  being  deemed  a  deviation :"  but  it  is  not  advifable,  either  for 
the  infured  or  infurer,  to  have  them  inferted,  becaufe  they  are  too  great  a 
temptation  to  alterations  of,  or  deviations  from  the  courfe,  without  need ;  and 
fundry  inftances  may  occur  where  a  reafonable  and  jufl;  conftruftion  of  them 
might  not  take  place  without  litigation  ;  to  which  indeed  they  feem  naturally 
to  lead ;  but  which  in  all  matters  of  infurance  ought  to  be  guarded  againfl  as 
much  as  poflible. 

2.  When  there  is  inferted  in  the  policy,  by  confent  of  the  infurers,  a 
liberty  to  touch  at  any  one  or  more  places,  as  may  be  mentioned,  fuch 
additional  rifr/ice  is  often  worthy  of  more  attention  than  is  ufually  given  to  it 
by  infurers,  at  the  time  of  underwriting; — for  fuch  liberty  of  touching 
includes  the  flaying,  difcharging,  and  loading  goods  at  fuch  places,  and 
commonly  extends  the  length  and  hazard  of  the  voyage  confiderably  beyond 
the  fmall  increafe  of  premium  that  is  allowed  in  confideration  thereof; — 
indeed  it  frequently  happens  that  no  greater  premium  is  given  on  a  voyage 

with 


TOUCHING.  549 

with  fuch  liberty  of  touching,  &c.  than  on  the  fame  voyage  without  it ; 
which  in  pratlice  is  prepoUerous ;  and  a  proper  difference  of  premiums 
ought,  in  all  fuch  cafes,  to  be  made  fuitable  to  the  difference  of  the  rifques : 
in  faci,  many  veffels  have  been  totally  loft,  and  very  many  others  have 
made  heavy  averages,  owing  folely  to  their  touching  though  at  only  one  inter- 
mediate port:  how  much  more  then  is  the  danger  enhanced  by  calling  and 
flaying,  unloading  and  loading  at  feveral  ports,  out  of  the  way,  and  perhaps 
through  fhallow  and  dangerous  rivers,  &c.  ? — moreover  what  is  infured  as  a 
fhort  and  fummcr  paffage,  generally  proves,  through  the  delays  bv  fuch 
touchings,  a  long  winter  voyage: — befides  the  not  improbable,  thouo-h 
unexpefted  intervention  of  fome  public  events,  fuch  as  hoftilities,   embargo, 

&c. If  the  fmalleft  deviation  from  the  diretl  courfe  of  a  voyage  be  deemed 

of  fo  much  moment,  with  refpeft  to  it's  probable  confequences,  as  to  be 
abfolutely  fatal  to  the  policy,  furely  the  increafed  dangers  of  an  extenlive 
liberty  of  touching  require  an  adequate  increafe  of  premium  ! 

3.  There  is  great  reafon  to  believe  that  feveral  of  the  veffels  belonging 
to  the  out-ports,  and  to  Ireland,  trading  to  and  from  thence,  too  frequently 
take  the  liberty,  for  illicit  and  other  purpofes,  of  deviating  and  touching  at 
places  not  mentioned,  without  any  permiffion  in  the  policies,  or  know- 
ledge of  the  infurers,  who  have  inadvertently  paid  fundry  loftes,  and  great 
averages  thereby  occafioned :  and  I  have  met  with  feveral  inftances, 
where  the  mafter,  owners,  or  affureds,  have  been  really  ignorant  of  the 
confequences  (as  to  their  infurances)  of  putting  into  or  touching  at  a  place 
or  two  by  the  way,  nearly  in  the  courfe  of  the  voyage,  imagining  they  had 
a  right  to  do  fo,  by  virtue  of  the  aforementioned  printed  words  in  the  policy. 

4.  If  it  is  permitted,  by  an  exprefs  claufe  in  the  policy,  that  the  fliip  mav 
touch  at  a  certain  port  or  ports  mentioned,  and  the  mailer  there  difcharges 
and  fells  goods,  and  takes  on  board  others  to  replace  them,  or  which  are  the 
produce  of  thofe  whioli  he  hath  delivered;  thefe  goods  are  to  be  confidered 
as  in  the  place  of  the  former,  and  the  infurers  run  the  rifque  of  them,  as  of 
the  former,  together  with  thofe  which  remain  on  board. — Sentence  at 
Marfeilles,    December  12,    1749,    reported  by  M.  Emerigon,    in  favour   of 

M.  Jean  Fiquet,  againft  the  infurers  on  goods  in  the  fhip  La  Minervc. The 

like  fentence  was  given,  January  30,  1751,  in  favour  of  Capt.  Andre  Vincent 
Fabre,  againft  Meff.  Nicolas  and  Cognie,  infurers  of  a  fmall  quantity  of  goods 
in  the  fliip  Le  Marquis  de  Vaudrcuil,  part  of  which  had  been  difchargcd  at 
the  Cape,  and  the  produce  converted  into  other  goods. 

5.  By  virtue  of  this  claufe,  i.e.  '*  with  liberty  to  touch  at  &c."  goods 
which  are  taken  on  board  at  the  place  of  touching,  to  complete  the  cargo, 
are  alfo  within  the  rifque  of  the  infurers. — Arret  d'Aix,  June  13,  1746,  in 
favour  of  Meffrs.  Arnaud  and  others,  merchants  at  Bayonne,  againft  the 
infurers  on  goods  in  the  fliip  Le  St.  Bernard:  which  fentence  was  alfo 
confirmed  on  appeal. — 2  Valine  Comm.  78. 

6  T  6.     When 


550  TREAT        Y. 

6.  When  mafiers  of  vefTels  have  liberty  to  touch  at  different  ports,  the 
infurers  (hall  not  be  liable  for  accidents  that  may  happen  to  goods  on  Jliore, 
though  they  were  dtftined  for  the  cargo  on  which  they  have  underwrote, 
and  the  fliip  might  be  in  port  to  take  them  in,  except  there  be  a  particular 
ao-reenient  by  the  policy. — Ordin.  of  France. 

7.  When,  by  the  policy,  there  is  a  liberty  of  touching  at  different  ports, 
the  rifques  of  goods  to  be  taken  there  are,  of  right,  regulated  according  to 
thofe  which  the  infurer  takes  upon  him  with  refpeft  to  the  loading  of  the 
goods  in  the  place  of  departure ;  that  is,  if  he  hath  taken  upon  him  the 
rifque  of  the  goods  in  barks  or  lighters  to  carry  them  aboard,  it  (hall  be  the 
fame  at  the  places  of  touching : — but  this  does  not  make  the  infurer  anfwer- 
able  for  any  damage  to  the  goods  whilft  on  Jliore,  without  a  formal  and 
exprefs  claufe  ; — which,  although  exorbitant,  is  neverthelcfs  frequently  inferted 
in  policies  in  France. — 2  Valins  Comm.  85. 

8.  Remark. — In  order  to  prevent  the  difputes  which  miglit  in  fome 
cafes  arife,  with  regard  to  the  rifque  of  goods  infured,  or  a  part  of  them, 
which  may  be  difcharged,  and  others  taken  on  board,  at  the  place  or  places 
where  the  fliip  may  touch  agreeable  to  a  liberty  in  the  policy ;  it  is  advlfable 
to  infert  exprefsly  that  fuch  rifque  fliall  be  borne  by  the  infurers,  and  to  the 
amount  (as  far  as  the  fums  infured)  of  the  eflfefts  on  board  at  the  time 
of  any   accident. 

g.  See  Prelim.  Difc.  53.  Accident,  Alteration  of  Policy  Voyage  or  Rifque, 
Claufe,  ConftruBion,  Deviation,  Lighter,  Policy,  Seafon,  Unloading,  Ufage, 
Voyage,    Written  Claufe. 

TRANSFER., 

1.  nPHEY  who,  with  the  confent  of  the  other  party,  would  transfer  an 
-^     infurance  of  one  flnp  to  another,  or  of  one  kind  of  goods  to  another, 
or  of  a  larger  capital  to  a  fmaller,  Ihall  be  obliged  to  pay   the   infurer  half 
per  cent,  though  no  fuch  thing  had  been  ftipulated. — Ordin.  of  Koningfb. 

2.     See  Affignment,  Fire,  Interefl,  Property  &  Proprietor,  Ship  or  Ships. 

TREATY. 

1.  TN  time  of  war,  treaties  are  but  too  flightly  regarded,  or  not  flriftly 
^  adhered  to:  therefore,  the  chief  thing  which  determines  merchants 
in  their  enterprizes  by  fea,  in  fuch  times,  is  the  premium  afked  for  the 
infurance :  and  the  infurers,  notwidiftanding  they  are  not  ignorant  to  what 
vexations  fliipping  is  then  generally  liable,  will  be  tempted  by  high  premiums 
to  expofe  themfclves   to  all  chances,  and  often  rely  more  upon  the  width 

of  the  ocean  than  upon  the  favour  they  have  to  expctl  from  treaties. 

Neverthelefs, 


TREATY.  551 

Neverthelefs,  as  there  are  contained  in  our  treaties  of  commerce  and  navi- 
gation with  foreign  powers,  fundry  important  matters,  as  well  in  confirmation 
of  the  general  law  of  nations,  as  deviating  therefrom  by  exprefs  ftipulations 
of  particular  privileges,  in  favour  of  the  contrafting  parties,  it  hath  been 
deemed  requifite  to  extraft  from  thofe  treaties  the  mofl:  material  articles 
(under  the  titles  referred  to  in  the  next  fc6lion) : — to  fome  of  which,  efpe- 
cially  thofe  wliich  relate  to  freedom  of  Navigation,  Lazo  of  Nations,  Mafqued 
Ship  or  Property,  Neutral  Ship  or  Property,  Prize,  &c.  I  have  fubjoined  a 
few  practical  remarks. 


2 

Holland, 


Feb. 

1661  - 

Feb. 

167I- 

Dec. 

1674  - 

Nov. 

1655  - 

Feb. 

16-j^- 

Nov. 

1686  - 

Treaty  with       ■,'  ,      /cr    c     {.Capture,  Conirahand,  Convoy,   HopHity, 
DLL  AND,  (  Lazo  of  Natious,  Pirate,  Repri/al. 

Contraband,  Law  of  Nations. 
Contraband,  Flag,  Law  of  Nations . 
'Commiffion  of  Marque,  Confif cation.  Con- 
traband,  Freedom  of  Navigation,  Pafs 
.or  Paffl^ort,  Privateer. 
France,  Nov.  1655  -  -  Law  of  Nations. 

K  Commifjion  of  Marque,  Freedom  ofNavi- 
(gation.  Law  of  Nations. 
(  Commijfion  of  Marque,   Difirefs,    Fifli- 
i  eries,  Pirate. 
{'Contraband,     Freedom   of  Navigation, 
\  Hojiility,     Law  of  Nations,    Paffport, 
'16       I  pifdte.    Privateer,    Privilege,   Seizure, 
IShipsofWar. 

<-.  nT        ^^        (Confifcation,    Contraband,    Freedom  of 

Spain,  May  1667  -   N  .r    •     ,-        j         r  ^t  .■         r,  ^     . 

^j  ^         '       <Navigatt07i,  Law  oj  Nations,  Paffport, 

^°^-'^'3  -  (ships  of  War. 

Portugal,  July   i6r ^  -  S^^M^ture,  Conffcation,  Freedom  of  Navi- 

Xgation,  Free  Ships. 
Netherlands,        Feb.  1495  "  "  P^i'^^i^- 
Sweden,  Oft.  1661   -  -  Capture,  Pafs  or  Paffport. 

Denmark,  Nov.  1609  -   ^  Law  of  Nations,  Pafs  or  Paffport,  Pirate, 

July  1670  -  i  Privateer,  War, 
Ottoman  Porte,  Sep.  1675  -  -  Pirate,  Turkey. 
Morocco,  Ju^yi75i  "  "  Morocco. 


>  Ships  of  War. 
\Algi 


ners. 


Algiers,  Apr.  1682 

Apr.  i636 

Aug.  1700 

Oa.  1716 

Tripoly,  July  1716  -  -  Tripoly. 

Tunis,  Aug.  1716  -  -  Tunis. 

OfRYSVVICK,        ^ 

between  France    >•    Sep.  1697  ■  -  Law  of  Nations. 
and  Holland         ) 


3.    Remark. 


552  TREAT"       Y. 

3.  Remark. — In  regard  to  the  famous  marine  treaty  concluded  at  llLrecht 
in  1713,  between  England  and  France,  as  it  contains  fome  articles,  fuch  as 
the  ninth,  relative  to  cuftoms  or  duties,  which  could  not  take  place  without 
the  interpolition  of  an  aft  of  parliament,  and  no  fuch  act  having  been  paffed; 
the  French,  as  it  fuits  their  intcrell,  reject  the  whole  on  that  account,  or 
infifl:  on  it's  being  fulfilled  ;  becaufe,  although  it  was  not  confirmed  by  parli- 
ament, it  was  figned  by  our  plenipotentiaries.  It  would  feem  therefore  that 
only  the  treaties  of  1677  and  1686  are  uncontro verted  ;  and  that  by  the 
treaty  of  Utrecht  of  1713,  which  is  confirmed  by  the  treaty  of  Aix-la-Chapelle 
in  1748,    the  French  meant  only  the  treaty  of  peace  and   friendfhip,   which 

may  be  found   in  the  Corps   Diplovi.    torn  iii,    p.  i.    pag.  339. See  the 

coWcciionoi Parliamentary  Debates,  vol.  vi.  p.  10 j,   105.   ed.  1741.     Briiiflt 
Merchant,  vol.  i.  pref.  p.  vii.  xiii.  and  p.  67  to  6g.  vol.  in.  p.  327  to  382, 

ed.  1721. The  grand  objc6ls  of  treaties  of  commerce  are,  to  fecure  to  the 

contrafting  parties  an  uninterrupted  and  juft  freedom  of  navigation,    in  time 
of  war  as  well  as  peace,  and  at  the  fame  time  to  prevent  them  from  favouring 
either  of  the  belligerent  powers  more  than  the  other,  by  furnifhing  them  with 
the  means  of  defending  themfelves,   or  oi  attacking  the  enemy  with  greater 
advantage. — In  1689  ^  treaty  was  figned  between  England  and  Holland,  by 
which  they  agreed  to  notify  to  all  the  ftales  which  were  not  engaged  in  the 
war  with  France,   that  they  would  feize,   and  declare  as  good  prize,   every 
veflel  bound  to  and  coming  from  any  of  the  ports  of  the  enemy. — Similar  de- 
clarations were  made  by  France  and  Spain  at  the  commencement  of  the  prefcnt 
war  with  England. — Some  learned  writers  on  the  law  of  nations  maintain, 
neverthelefs,    that  the  fea  being  a  free  and  open   field  to  all   navigators, 
nations  equally  fovereign  acknowledge  no  jurifdiclion  upon  this  element:  and 
that  although  it  fhould  be  proved  inconteilably  that  neutral  veffels  are  loaded 
for  the  account  of  enemies,  the  belligerent  powers  have  no  more  right  to  make 
capture  of  their  cargoes,   than  they  would  have  to  feize  the  like  effefts  upon  a 
neutral  territory. — "  The  neutral  navigator   (fays  M.  Habner,   in  his  Dijfer- 
iation  fur  la  Jaifie  des  batimens  neutrcs)  fometimes  carries  on  a  commerce 
only  of  freight  and  commifTion ;    it  is  his  fortune,  the  patrimony  which  Provi- 
dence hath  imparted  to  him  ;    it  is  the  only  objecl  of  his  induflry,  of  which  a 
nation  at  war  has  no  more  right  to  deprive  him,  than  to  feize  the  harvefl  of  the 
hufbandman,   on  the  pretext  that  he  hath  fold  it  to  the  enemy  :   the  nation 
ahat  pretends  to  put  fliackles  upon  the  commerce  of  neutral  people,   when 
■this  commerce  hath  no  dire£l  and  immediate  relation  to  the  war  and  it's 
operations,   ufurps  an  authority  which  belongs  not  to  any  potentate  whatfo- 

•ever.'' But,    it   may   be    obferved   that,    in   fatl^    almoll   every   nation, 

in  time  of  war,  connives  at  a  violation  of  the  principles  of  neutrality;    con- 
fulting,    for  the  mofl  part,  only  their  force  and  their  intereft. 

4.     See  Prelim.  Di/c.  70.  Civil  Law.,  Sca^  War;   and  the  titles  mentioned 
in  the  firfl  feclion. 


TRIAL. 


TRUST       AND       TRUSTEE. 


R  I  A  L. 


553 


.1-  T/^7'^'^^  refpeft  to  trials  of  infurance  caufes  in  courts  of  law,  and 
V  V     otherwife,  the  reader  is  referred  to  the  feveral  heads,  or  titles, 
hereunder  mentioned;    and  particularly  to  the  Prelim.  Life.  p.  15  to  20, 
and   p.  84. 

2.  Adjudged,  thatifacaufe  has  lain  at  ifTue  four  terms,  and  no  pro- 
ceedings had,  there  muft  be  a  full  term's  notice  of  trial,  excluding  the  term 
wherein  iffue  was  ]6m^A.—AJhxuin  v.  Corbill.   Mich.   2  Anne.— 2  SalL  650. 

3.  Sv.^  Amicable  Judicatory,  Arbitration,  Chamber  of  AJfurance,  Conful, 
Court-Merchant,  Court  of  Policies  of  Affurance,  Jury,  Laxo  Laxifmt  & 
Lawyers,  New  Trial,  Precedent,  Verdid. 


T         R         I         P         O         L         Y. 

1.  TF  any  of  the  fhips  of  war  of  the  king  of  Great-Britain  come  to 
A  Tripoly,  or  to  any  other  port  or  place  of  that  kingdom,  with  diny  prize, 
they  may  freely  fell  it,  or  otherwife  difpofe  of  it  at  their  own  pleafure, 
without  being  molefted  by  any  :  and  his  majefty's  faid  fliips  of  war  fliall 
not  be  obliged  to  pay  cuftoms  in  any  fort ;  and  if  they  (hall  want  provi- 
fions,  viftuals,  or  any  other  things,  they  may  freely  buy  them  at  the  rates 
in  the  market. — Treaty  with  Tripoly. 

2.     See  Algiers,  Barbary,  Morocco,  Pirate,  Treaty,  Tunis,  Turkey. 


TRUST       AND        TRUSTEE. 

1.      ACTION  may  be  maintained  on  a  policy  of  alTurance,  made  in  the 
-^^  name  of  J.   S.    if  J.  S.   declares   the   truft  in   writing. — Rooke  v. 
Thurmond. — Spencer  v.  Franco. 

2.  Case. — Indebitatus  afTumpfit  by  B.  for  5I.  received  to  the  plaintiffs 
ufe,  and  non  aflumpfit  was  pleaded  :  the  cafe  was,  that  A.  took  a  policy  of 
infurance  upon  account  for  5I.  premium  in  the  name  of  B,  and  A.  paid  the 
faid  premium  to  J.  S.  and  A.  had  no  goods  then  on  board,  and  fo  the 
policy  was  void,   and  the  money  to  be  returned  by  the  cuftom  of  merchants. 

It  was  infifted  that  the  aftion  ought  to  have  been  in  A.'s  name ;    for  the 

money  was  his,  and  if  the  policy  had  been  good,  it  would  have  been  to  his 
advantage,  and  it  could  not  be  faid  to  be  received  to  B.'s  ufe,  it  never  being 
his  money :  befides  here  may  be  a  great  fraud  upon  all  infurers,  in  this,  that 
an  infurance  may  be  made  in  another's  name,   and  if  a  lofs  happen,   then 

6'  U  '     the 


554  TRUST       AND       TRUSTEE. 

the  infurers  fhall  pay,  for  that  fome  ceflid  que  tritjl  had  goods  on  board  ;  but 
if  the  (hip  arrives,  then  the  nominal  truftee  Ihall  bring  an  indebitatus  afTumpfit 

for  tlie   premium,    as   having  no  goods  on  board. To  all  which  Holt, 

chief  juftice,  anfwercd,  that  the  policy  being  in  B.'s  name,  tlie  premium  was 
paid  in  his  name,  as  his  nuMicy,  and  he  mull  bring  the  aftion  upon  a  lofs, 
and  fo  upon  avoidance  of  the  policy  to  recover  back  the  premium  ;  and  as  to 
the  inconveniencies,  it  would  be  the  fame,  whofoevcr  was  to  bring  the 
aftion ;  and  therefore  the  infurers  ought  with  caution  to  look  to  that  before- 
hand.—5/wrD.  156.  Pafch.  2  W.  and  M.  Vin.  Abn  Tit.  Pol.  of  Alf.  (A.)  37. 
— Martin  v.  Siiwell. 

»■ 
3.     Case. — B.  having  the  command  of  a  merchant-fliip,  and  likewife  a  fliare 

in  her  as  being  an  owner,   in  1730  defircd  A.  by  letter,  to  get  200I.  infured 

on   her :     an  infurance  was  made  in  the  name  of  A.    (the  agent)   by  B.'s 

direftion,  the  infurers  (J.  S.  and  T.  S.)  knowing  nothing  of  B. :  in  the  voyage 

the  fhip  was  loft,    and  B.  the  captain  caft  away  ;    M.  the  adminiflratix  of  B. 

gave  J.  S.   and   T.  S.   notice  of  the  lofs  and  truft,  and  required  payment  to 

her  only :  but  A.  under  pretence  that  B.  was  indebted  to  him,  procured  the 

infurers  to  give  him  credit  for  the  fum  in  an  account  which  they  afterwards 

made  up  -with  him,  and  then  the  balance  of  that  account  was  carried  into  a 

new  account,    and  the  fecond  account  was  afterwards  fettled  between  them. 

Upon  a  bill  by  M.  to  be  relieved,   it  was  decreed  that  the  infurers  pay 

her  the  money,   and  A.   to  pay  the  cofts  of  fuit,    deducing  thereout  the 

charges  he  had  been  at  in  obtaining  the  policy. — Barn.   Chan.  Rep.  319. 

Mich.  1740. — Fell  v.  Lutxjoidge. 

4.  Case. — (Before  the  Houfe  of  Lords)  Upon  an  appeal  from  an  order 
by  lord  chancellor  King :  the  cafe  appeared  to  be,  that  the  appellants  De 
Ghettoff  and  others,  having  fitted  out  a  fhip  (the  Flandria)  for  a  voyage 
from  Oftend  to  China,  fent  a  commiffion  to  one  Deconick,  their  agent  in 
London,  to  procure  an  infurance  made  by  the  refpondents,  the  London- 
Affurance -Company,  upon  the  faid  fliip,  for  the  voyage  aforefaid,  for  5,0001. : 
the  (hip  being  loft  in  her  voyage,  the  appellants  brought  their  bill  in  the  court 
of  chancery  againft  the  refpondents,  and  alfo  againft  Deconick,  fetting  out 
the  infurance,  and  fuggefting  that  the  Ihip  was  loft  ;  which  lofs  amounted  in 
value  to  the  whole  of  tlie  faid  5,0001.  and  that  the  plaintiffs  were,  in  fhares, 
entitled  to  recover  the  fame  :  that  the  faid  Deconick  was  only  their  truftce  ;  that 
he  refufed  to  let  them  make  ufe  of  his  name  at  law  ;  and  that  they  live  abroad 
in  feveral  diftant  and  remote  places,  whereby,  and  by  reafon  of  the  great 
difficulty  of  procuring  witneffes,  viva  voce,  they  were  difabled  from  bringing 
an  aftion  at  law  ;    and  therefore  prayed  a  decree  for  the  5,000!.  according  to 

their  feveral  proportions. The  refpondents  put  in  an  anfwer  to  fo  much  of 

the  bill  as  related  to  a  difcovery  ;  but  as  to  the  demand  of  the  5,000!.  or 
any  lofs-money,  they  demurred  :  for  caufe  of  which  demurrer  fliewed,  that,  if 
the  policy  was  forfeited,  a  proper  aftion  at  law  lay  to  recover  the  money  ^o 
loft  ;   and  that  the  appellants,   if  they  had  any  juft  demand,  might  have  their 

complete 


TRUST       AND       TRUSTED.  55^ 

complete  and  adequate  remedy,  by  fuch  aaion  at  law,  Avhcre  matters  of 
this  nature  are  properly  cognizable,  and  where  the  appellants  ought  to  prove 

their  intereft  and  lofs  ;    and  not  in  a  court  of  equity. This  demurrer  was 

argued  before  lord  chancellor  King,  upon  the  15th  of  June  1728,  and  the  appel- 
lants counfcl  infilling  very  much  on  the  allegation  in  the  bill  of  Deconick,  the 
truftce's  refufmg  to  permit  his  name  to  be  made  ufe  of  in  an  aftion  at  law,  his 
lordfliip  was  pleafed  to  refpite  the  confideration  of  the  demurrer,  till  the 
coming  in  of  the  defendant  Deconick's  anfwer:  but,  if  the  appellants  did  not 
procure  his  anfwer  within  two  months,   it  was  ordered,   that  the  demurrer 

fhould  be  allowed. Deconick  put  in  his  anfwer  within  the  two  months, 

and  thereby  admitted,  that  he  made  the  aflurance  in  his  own  name,  in  truft, 
and  for  the  benefit  of  the  appellants;  but  faid  he  did  not  care  to  permit  the 
appellants  to  bring  an  atlion  againfl  the  company  on  the  faid  policy,  in  his 
name,  he  being  advifed,  that  if  he  did,  and  they  failed  therein,  he  would  be 
perfonally  liable  to  pay  the  cofts :  upon  which,  on  the  21ft  of  November 
1729,  the  demurrer  came  on  to  be  further  argued,  when  it  was  ordered,  that 
it  fhould  Hand  and  be  allowed :  from  which  order  an  appeal  was  preferred  to 
the  houfe  of  lords,  upon  the  two  following  reafons : — firfl,  for  that  the 
appellants  cannot  maintain  an  action  at  law  upon  the  faid  policy  in  their  own 
names,  and  it  is  in  the  power  of  their  truftee,  whether  he  will  permit  his 
name  to  be  made  ufe  of  or  not :  aqd  that  in  cafe  the  appellants  were  able  to 
bring  an  aftion  in  their  own  names,  it  would  be  to  no  purpofe,  in  regard 
that  all  their  witnefles,  who  can  prove  the  lofs  of  the  fliip,  and  the  refpective 
intereft  of  the  appellants  therein,  live  at  diftant  places  beyond  the  feas,  and 
are  not  in  the  power  of  the  appellants ;  nor  can  the  appellants  compel  them 
to  come  over  here  to  be  examined  on  any  trial  at  law : — fecondly,  for  that 
the  appellants  can  have  no  manner  of  remedy  againft  the  refpondents  upon 
the  faid  policy,  but  in  a  court  of  equity,  where  they  may  have  an  opportunity, 
by  virtue  of  a  commiffion,  to  examine  their  witnefles  beyond  the  feas,  and 
thereby  be  enabled  to  prove  the  lofs  of  the  faid  fliip :  and  that,  in  cafe  the 
appellants  are  deprived  of  this  remedy,  they  will  not  only  lofe  the  faid  5,000!. 
but  alfo  the  fum  of  600I.  which  they  paid,  as  a  premium  to  the  refpondents, 
upon  making  the  infurance :  and  the  refpondents,  though  they  are  debtors  to 
the  appellants  in  5,000!.  and  intereft,    will,    inftead  of  paying  fuch  debt,   go 

away  with  600I.  of  the  appellants'  money. On  behalf  of  the  refpondent  it 

was  infifted,  that  the  order  for  allowing  the  demurrer  was  agreeable  to  equity: 
— firft,  that  the  appellants'  demand  is  plainly  a  demand  at  law,  they  having 
nothing  to  prove  but  their  intereft  and  tlie  lofs  of  the  ftiip,  which  are  fafts 
proper  to  be  tried  by  a  jury : — fecondly,  that  there  is  no  equity  ftiggefted 
in  the  bill,  but  a  pretended  difficulty  to  produce  witnelfes,  and  that  their 
truftee  refufed  them  to  bring  an  aftion  in  his  name:  the  former  of  which  may 
with  equal  reafon  be  fuggefted,  in  ahnoft  every  cafe  of  a  policy  of  infurance  ; 
and  the  latter  appears  manifeftly  to  be  thrown  into  the  bill  merely  to  change  the 
jurifdiftion,  and  is  in  a  great  meafure  fatisfied  by  the  truftee's  anfwer;  lor  he 
does  not  fay  he  ever  refufed,  but  that  at  the  time  of  fwearing  his  anfwer  he  did 
not  care  to  let  his  name  be  made  ufe  of: — thirdly,  that  if  bills  of  this  kind  are 

encouraged, 


556  TUNIS. 

encouraged,   it  will  be  very  eafy  to  bring  all  kinds  of  property  to  be  tried  in  a 

court  of" equity. The  lords  vere  pleafed  to  affirm  the  order. — Did.  Tr.  & 

Com.:  in  domo  procerum  :  Feb.  i.  1730. — De  (jheiioff  et  al.  v.  Lond.  AJf. 
Comp. — See  alfo  3.  Browns  Pari.  Cafes,  525. 

5.  The  ordin.  of  France  requires  that  "in  the  policy  (hall  be  inferted  the 
^anie  and  place  of" abode  of  the  affured  ;  whether  he  be  the  proprietor  of  what 
he  infures,  or  a6ls  diS  factor  ;  the  cffefts  whereon  the  infurance  fhall  be  made. 
Sec. :" — all  which  is  very  jufl  and  proper,  and  was  in  former  times  always 
praQifed,    as  appears  by  the  Guidon,    c.  2,    in  order  to  prevent  fraud  or 

furprife,   and  the  difputes  which  naturally  arife   from   thence. Infurance 

may  be  made  for  a  perfon's  own  account,  or  for  account  of  whomfoever  the 
effefts  belong  to  ;  to  this  purpofe  are  the  following  words  in  our  policies,  "  as 
well  in  his  (or  their)  own  name,  as  for  and  in  the  name  and  names  of  all 
and  every  other  perfon  or  perfons  to  whom  the   fame  doth,    may,    or  fhall 

appertain,    in  part  or  in  all :" and  the  policy  is  valid  although  the  real 

proprietor  be  not  named  till  a  future  time. — Cafa  Regis,  difc.  4.  n.  10,  and 
difc.  5.   n.  2,   5,   and   26. — Stracca,  de  affec.  gl.  19.   n.  6. — Roccus,   197, — 

Targa  225. But,   in  time  of  loar,   there  is  danger  of  the  property  being 

mafqited,   when  the  policies  and  bills  of  lading  exprefs  only  that  it  is   "  for 

account  of  whomfoever  it  may  belong  to. The   truftee,   or  faclor,    afting 

for  the  principal,  the  affured,  may  make  abandonment  to  the  infurers,  and 
demand  from  them  the  payment  of  the  infurance,  remaining  accountable  for 
A\hat  may  be  recovered  : — fo  held  by  the  admiralty-court  of  Marfeilles,  con- 
firmed by  fentence  of  the  27th  of  July  1748,  in  favour  of  the  Sieur  Benza, 
faftor  of  Laurent  and  Jerome  Guiglino. — 2  Valins  Comm.  34,  99. 

6.  See  Abandonment,  Concealment,  Douhle-Infurance,  FaSlor,  Infured, 
Inter ejl,  Mafqaed  Ship  or  Property,  Name,  Order,  Prior-Infurance,  Property, 
Reprifal,  Refpondentia,  Return,  Salvage,   Seizure,   Ship  or  Ships,  Society. 


'•N* 


TUNIS. 

'ONE  of  the  (hips,  or  vefTels,  belonging  to  Tunis,  or  the  dominions 
thereof,  (hall  be  permitted  to  cruife,  or  look  for  prizes  of  any 
nation  whatfoever,  before  or  in  fight  of  the  city  of  Gibraltar,  or  any  of 
t1ie  ports  of  the  ifland  of  Minorca,  to  hinder  or  molefl  any  vefTels  bringing 
provifions  and  refrefhments  for  his  Britannic  Majefty's  troops  and  garri- 
fons  in  thofe  places,  or  give  any  dillurbance  to  the  trade  or  commerce 
thereof;  and  if  any  prize  fliall  be  taken  by  the  fliips  or  vefTels  of  Tunis, 
within  the  fpace  of  ten  miles  of  the  aforefaid  places,  it  fliall  be  reflored 
without  any  difpute. — Treaty  with  Tunis.     1716. 

2.     See  Algiers,  Barbary,  Morocco,  Pirate,   Treaty,  Tripoly,  Turkey. 

TURKEY. 


[    557    ]  . 

TURKEY. 

1.  T^ORASMUCH  as  it  is  publicly  notorious,  that  certain /'/ra^cy  of  Tunis 
-*-  and  Algier,  in  breach  of  our  imperial  capitulations,  and  contrary  to  our 
will  and  intention,  do  take  and  carry  off  by  fea,  the  ftiips,  merchandife,  and 
men,  who  are  the  fubjefts  of  the  king  of  England,  and  of  other  kings  and 
ftates  in  alliance  with  our  imperial  Porte,  to  the  great  damage  and  prejudice 
of  the  faid  Englidi  nation ;  for  thefe  caufes  we  command,  and  do  by  thefe 
prefents  enjoin,  that  feveral  mandates  be  given  and  difpatched  for  the  entire 
and  perfeft  reftitution  of  the  goods  and  merchandife  fo  taken  from  the 
Englifh  nation,  and  that  all  the  Englifli  who  have  been  taken  and  made 
f„av€s,  or  imprifoned  by  die  faid  pirates,  may  be  forthwith  fet  at  liberty  : 
and  if  after  the  day  of  the  date  of  our  prefent  imperial  capitulations  it 
happens,  that  the  faid  pirates  of  Tunis  and  Algier  continue  to  rob  and 
commit  other  outrages  againft  them,  and  will  not  reftore  their  goods  and 
perfons,  we  Ibrbid  the  faid  pirates  to  be  received  into  any  port  of  our  domi- 
nions, and  particularly  into  the  harbours  of  Tunis,  Algier,  Modon  or  Coron; 
and  do  exprefsly  forbid  our  beglerbeys  and  other  minifters  to  let  them  enter 
therein,  or  to  fuffer  them  to  be  there  entertained ;  but  on  the  contrary,  we 
command  the  beglerbeys,  cadis,  and  other  minifters,  to  profecute,  banifli, 
and  punifh  them. — Treaty  xoitli  Turkey,    1675. 

2.  In'  the  war  of  1744,  the  Ruby  merchant-man,  upon  a  commifTion 
granted  from  the  admiralty  in  England,  to  cruife  ia  the  Mediterranean, 
took  fome  French  veflels,  which  were  condemned  with  their  cargoes,  by  the 
firfl  judge  of  the  admiralty  ;  and  the  owners  of  the  Ruby  not  having  been 
cautioned,  on  taking  out  the  commifTion,  to  deal  with  Turkilh  effefts  other- 
wife  than  with  thofe  belonging  to  other  nations  (who  all  knew  our  treaties 
with  France  to  be,  that  unfree  flips  (liould  make  unfree  goods,  and  fo  would 
naturally  avoid  (hipping  in  the  fame)  thought  themfelves  quite  fafe  with  their 
prizes  ;  but  found  it  otherwife,  upon  the  Turks  having  made  the  Englifli 
faftory  at  Aleppo  pay  for  them  ;  who  thereupon  fent  to  England  fome  Turks, 
proving  the  goods  on  board  to  have  been  their  property  ;  and  the  lords  of 
appeal  ordered  them  to  be  reftored  with  cofts,  allowing  that  our  treaties 
made  with  France  ought  not  to  affeft  the  concerns  of  the  Turks,  fuppofed 
to  be  unacquainted  with  the  treaties  made  by  us  with  other  nations  in 
Europe. — 2  Mag.  Gj^. 

3.  See   Algiers,    Barbary,    Captives,    Freedom  of  Navigation,    Morocco, 
Pirate,  Premium,    Treaty,  Tripoly,  Tunis. 


i^ 


6  W  UNION 


u. 


UNION       FIRE-OFFICE. 

1.  rTT^HIS   fociety,   in  virtue  of  a  deed  of  fettlement,  ini'ares goods  and 
I       merchandi/'e  from  lofs  by  fire,  by  mutual  contribution  : — the  terms 

and  methods  whereof  are  as  follow;  viz. 1.  To  infure   for  all 

merchants,  traders,  houfe-keepers,  and  others,  in  the  cities  of  London  and 
Weftminfter,  and  bills  of  mortality  ;  and  all  places  within  twenty  miles  from 

the  ftandard  in  Cornhill : 2.  Mcrchandifes,  goods,  wares,  utenfils  in  trade, 

houfliold  furniture,  plate,  and  wearing  apparel  (except  pictures,  glafs,  china- 
ware,  ready  money,  jewels,  books  of  account,  tallies,  writings,  barns,  ricks 
and  {lacks  of  corn,  hay,  ftraw,  and  horfes)  glafs  and  china  in  trade  may  be 

infured  : 3.  To  infure  ^or /even years  ;  and  all  policies  expire  at  fix  of  the 

clock  in  the  evening  of  that  day  feven  years  on  which  they  are  dated  : 

4.  To  be  anfwerable  to  the  value  of  goods,  &c.   for  any  fum  not  exceeding 

8,oool.  in  any  one  houfe,  warehoufe,  yard,  &c. : 5.  All  and  every  perfon 

and  perfons  infuring  in  this  fociety,  fliall  pay  the  feveral  rates  and  proportions 
following  (except  as  herein  after  mentioned)  that  is  to  fay,  for  every  lool. 
infured  on  goods  enclofed  in  brick  ox Jlone,  10s.  depofit,  and  2s,  premium;  if 
half  hazardous,  as  to  fituation,  or  kind  of  goods,  15s.  depofit,  and  3s.  premium; 
\i  hazardous,  20s.  depofit,  and  4s.  premium  ;  \i^  hazardous  and  half  hazardous, 
25s.  depofit,  and  5s.  premium  ;  if  hazardous  and  hazardous,  30s.  depofit,  and 
6s.  premium : — for  every  lOol.  infured  on  goods  enclofed  in  part  brick  and 
part  timber,  12s.  6d.  depofit,  and  2s.  6d.  premium;  if  half  hazardous,  as  to 
fituation  or  kind  of  goods,  18s.  gd.  depofit,  and  3s.  pd.  premium;  if  hazard- 
ous, 25s.  depofit,  and  5s.  premium;  if  hazardous  and  half  hazardous, 
il.  us.  3d.  depofit,  and  6s.  3d.  premium;  if  hazardous  and  hazardous, 
il.  17s.  6d.  depofit,  and  7s.  6d.  premium  : — for  every  lOol.  ijifured  on  goods 
enclofed  in  timber,  15s.  depofit,  and  3s.  premium;  if  half  hazardous,  as  to 
fituation  or  kind  of  goods,  ij.  2s.  6d.  depofit,  and  4s.  6d  premium;  if 
hazardous,  30s.  depofit,  and  6s.  premium;  if  hazardous  and  hall' hazardous, 
il.  17s.  6d.  depofit,  and  7s.  6d.  premium;  if  hazardous  and  hazardous,  2I.  5s. 
depofit,  and  9s.  premium : — provided  always,  that  in  cafe  at  any  time  or 
times  hereafter,  any  perfon  or  perfons  fhall  infure,  or  caufe  to  be  infured,  in 
this  fociety,  upon  any  goods  or  mcrchandifes,  any  fum  or  fums  of  money 
exceeding  in  the  whole  the  fum  of  ],oool.  and  fo  on  to  the  fum  of  2,oool.  ind 

from 


UNLESS.  55g 

from  the  fum  of  2,oool.  on  to  the  fum  of  3,000!.  and  upwards,  then,  all  and 
every  fuch  perfon  or  perfons  fo  making  any  fuch  infurance  exceeding  the 
fum  of  i,oool.  and  fo  on  to  the  fum  of  2,oool.  Hiall  pay,  or  caufe  to  be  paid, 
unto  this  fociety,  a  double  premium,  for  and  in  refpeft  of  every  fuch  infurance  ; 
and  alfo  for  any  fuch  infurance  exceeding  the  fum  of  2,0001.  and  fo  on  to  the 
fum  of  3,00ol.  and  upwards,  a  treble  premium,  in  refpeft  of  the  fame;  to  be 
computed  after  the  feveral  rates  and  proportions,  and  in  the  manner  before 
particularly  mentioned : 6.  If  more  than  twenty  pounds  weight  of  gun- 
powder is  kept  on  the  premifes  infured,  the  policy  is  to  be  void : 7.  All 

infurances  beyond  the  bills  of  mortality,  pay  6d.  a  mile  from  the  ftandard  in 

Cornhill,  to  the  furveyor  for  his  charges,  &c. 8.  So  much  of  the  depofit- 

money  is  to  be  returned  at  the  expiration  of  the  policy,  as  has  not  been 
applied  to  the  making  good  of  loffes,  and  the  payment  of  necellary  charges, 
together  with  a  proportionable  dividend  of  profits ;  and  beyond  the  depofit, 
no  one  to  be  anfwerable  for  above  los.  per  cent,  on  brick,  and  proportionably 

for  part  brick  and  timber,  to  any  one  lofs : 9.  All  perfons  withdrawing 

their  infurance  to  return  their  mark  to  the  office  : 10.  There   are   porters 

and  watermen,  &c.  provided  by  the  office,  who  are  furniffied  with  bags,  to 
affift  in  removing  of  goods  ;    who  wearing  the  fociety 's  livery  and  badge,  and 

having  given  fecurity  for  their  fidelity,  may  be  trulled  in  cafe  of  danger : 

11.  Infurance  at  the  time  of  any  lofs,  in  any  other  office,  makes  the  policy  in 
this  office  void,  unlefs  fuch  infurance  be  allowed  by  the  direftors,  and  entered 
on  the  policy,  and  in  which  cafe,  a  proportionable  part  only,  of  any  fuch  lofs, 

is  to  be  paid  by  this  fociety  ; 12.  Conflant  attendance   is  given  at  the 

(ijfice  in  Maiden-Lane,    from  nine  to  fix. 

2.  See   Equitable  Society,  Fire,  Hand-in-Hand  Fire-Officc,  Society,  Wtjl- 
mirifter  Fire-OJfice. 

UNLESS. 

1.   TN  the  N.  B.  at  the  foot  of  our  policies,  certain  periffiable  commodities, 

JL  viz.  corn,  &c.  are  "  warranted   free  from  average,    others   free  from 

average  under  five  per  cent,   and  all  other  goods,  alfo  the   (hip  and  freight, 

free   from   average  under   three   per  cent,   unlefs  general,    or  the    fliip   be 

flranded  :" and  a  (hip,  loaded  with  corn,  having  in  her  voyage  met  with 

ftorms  which  obliged  her  to  cut  away  her  cable  and  anchor,  and  thereby 
incurred  a  general  average,  as  well  as  damage  to  the  cargo,  an  aftion  was 
brought  to  recover  a  particular  average  upon  the  corn  (the  general  average 
not  being  difputed) ;  and  the  queftion  turned  folely  upon  the  conJlruBion  of 

the  word  unlefs  in  the  faid  N,  B. And  it  was  determined  tliat  "  it  means 

the  fame  as  except ;  and  is  not  to  be  conftrued  as  a  condition  ;  the  words 
free  from  average  unlefs  general,  can  never  mean  to  leave  the  infurers  liable 
to  zxiy  particular  average."— 3  Burr.  1550.   10  July  x-jQ^.—Wdfon  v.  Smith, 

3,  See  Average,  Corn,  Peri/hable-Commodities,  Stranded  &  Stranding. 

^  UNLOADING. 


^66  USAGE. 

UNLOADING. 

1,  npHERE  are  fundry  ports  and  harbours  where  it  is  dangerous  for 
-■-  loaded  fliips  to  enter,  and  where  it  is  u/ual  to  unload  a  part  of  her 
cargo,  and  fend  it  in  barges  or  lighters  to  be  landed  ;  in  which  cafe,  as  alfo 
if  the  fliip  fliould  have  difcharged  but  a  fmall  part  of  her  cargo,  and  in 
attempting  to  go  in  with  the  rell,  it  may  happen  that  fome  damage  is  received 
as  well  to  the  (hip  as  the  goods ;  thefe  forts  of  accidents,  as  arifing  from 
neceffary  caufes,  are  commonly  regarded  as  unavoidable,  and  for  which  the 
infurers  mufl;  be  anfwerable,  not  the  owners  or  mailers  of  the  fliips  ;  for  it  is 
not  to  be  prefumed  that  they  would  wantonly  expofe  the  fhip  and  goods  to 
the  rifque  of  averages. — 2  Valins  Comni.  162,  167. 

2.  When  the  owners  or  loaders  of  a  (hip  make  ufe  of  the  fame  in  the 
nature  of  a  warehoufe  in  port ;  as  for  example,  not  to  unload  the  goods, 
when  it  could  conveniently  be  done,  or  to  let  the  fhip  lie  in  harbour  on 
purpofe  to  take  goods  on  board  from  other  fliips  lying  there,  and  then  to 
carry  them  on  fhore,  or  put  them  on  board  of  fome  other  veffel,  or  to  put 
the  goods  they  have  received  from  fhore,  and  taken  on  board,  over  into  other 
velTels  and  fhips  without  necefTity,  or  to  carry  them  on  fhore  again,  then  the 
affurer  is  not  anfwerable  for  any  rifque,  but  the  fame  remains  entirely  for 
account  of  thofe,  with  whofe  knowledge  and  confent  the  fame  was  done. — • 
Or  din.  of  Havib. 

3.  See  ConJlruHion,  Difcharge,  End  of  Voyage  or  Rifque,  General-Average, 
Landing,    Lighter,    Touching,   Ufagc. 

US  A  G  E. 


USAGES  and  cufloms  of  the  fea  are  certain  general  principles,  whicl 
compofe  the  bafis  of  marine  jurifprudence,  and  regulate  the  afi'air 


:h 

J       A  '  o  afiairs 

of  commerce  and  navigation. 


2.  A  POLICY  of  infurance  being  a  contraft  of  good  faith,  it  muft  be 
interpreted  according  to  common  ufage,  the  prefumption  being,  in  doubtful 
cafes,  that  the  parties  have  intended  to  conform  thereto,  if  there  be  no 
departure  from  it  by  exprefs  agreement  in  the  policy. — Cafa  Regis,  difc.  1. 
n.  2.  and  difc.  10.  n.  104. — Santerna,  de  aflec.  par.  3.  n.  1  and  ^^. — 
Roccus,  p.  231. 

3.  Case, — This  was  an  aftion  on  a  policy  of  infurance,  dated  Ociober 
31,  1753,  on  the  flip  On{\ow,  from  her  failing  out  of  the  river  Thames  to 
all  places  beyond  the  Cape  of  Good  Hope,  and  back  again,  and  until  fhe  is 
moored  24  hours  in  the  river  Thames : the  fliip  failed  the  27th  oi"  December 


Usage.  561 

1753,  upon  a  voyage  to  China,  and  arrived  at  Canton  ilie  September  following: 
— when  the  captain  got  there,  he  took  out  the  fails  and  tackle,  the  better 
to  refit  his  (liip,  and  laid  them  up  in  a  bank-faul,  upon  an  ifland  called  Btink- 
Saul-IJland ;  and  it  appears  this  was  the  univerfal  cujlovi  for  all  (liips  trading 
a  China  voyage  fo  to  do,  and  that  it  was  prudent  in  the  captain  to  follow  the 
common  cuftom  ;  the  Dutch  being  the  only  Europeans  not  permitted  to  refit 
there  ;  and  the  caufe  of  their  being  excluded  was,  for  attempting  to  build 
a  fort  there ;  and  it  is  a  great  difadvantage  to  them  not  to  be  allowed  this 
privilege  : — a  fire  happened  in  the  bank-faul,  belonging  to  a  Swedifii  fliip, 
which  communicating,  burned  the  bank-faul  wiiere  the  tackle  of  the  Onflow 
was  laid  up: — the  fhip  returned  in  September  1755:  the  damage  amounted 
to  167I.  16s.  7d. :  thefe  facts  being  found  by  a  jury,  a  queftion  was  made 
for  the  opinion  of  the  court,  viz.   "  Whether  the  infurers  have  infured  it  from 

this  accident?" It  was  argued  for  the  plaintiff",  that  the  infurers  computed 

the  rifque,  and  had  this  ufage  under  their  confideration  at  the  time  of  the 
infurance  :  the  rigging  was  burned,  not  by  negleft,  but  accidental  misfortune  : 
if  the  body  of  the  fliip  had  been  burned,  without  doubt,  the  infurers  would  have 
been  liable  only  for  the  fhip,  and  might  deduft  the  value  of  the  fails;  therefore 
in  equity,  fince  they  would  have  received  an  advantage  in  one  cafe  by  the 
captain's  conduft,  they  fhould  pay  in  the  prefent  cafe  :  it  is  incumbent  on  the 
defendants  to  fliewthis  cafe  not  to  be  within  the  words  :  Salk.  445.  Bond  v. 
Gonfales.  (See  Convoy)  where  the  queflion  was,  whether  the  lofs  be  within 
the  words  ?  the  ufage  of  fuch  voyages  has  always  been  confidered,  and  the 
reafon  is  plain,  for  the  infurers  have  under  their  confideration  all  the  rifques 
according  to  the  ufual  voyages :  in  the  cafe  of  Tierney  v.  Etherington,  1743. 
Lee,  chief  juflice,  faid,  tha.t  in  conjiru&ion  of  Tpolicies  JiriSIum  Jus  is  not 
to  be  infifled  upon  ;  and  that,  for  the  benefit  of  trade  :  the  cafe  of  Tierney  v. 
Etherington,  as  well  as  I  could  col  left,  was  a  cafe  brought  for  goods  loll  out 
of  a  boat  as  they  were  carrying  from  the  fliip  to  the  fhore  :  the  method  of 
unloading  is  the  means  of  attaining  the  end  defigned  by  the  policy  :  in  the 
cafe  of  Tierney  v.  Etherington,  it  was  not  within  the  words  of  the  policy, 
but  intent :  where  there  is  an  infurance  of  a  fhip  for  one  entire  voyage, 
there  mufl  not  be  a  fufpenfion  for  a  time  ;  therefore  if  a  fhip  flays  an  unrea- 
fonable  time  in  port,  the  contraft  is  determined,  not  fufpended :  when 
the    mafler  puts  in  at  the   ufual  ports,    he  is  not  obliged  to  fay  he  did   it 

ex  necejfitate,    otherwife  he  mufl. The  defendant's  counfel  urged,    that 

the  doftrine  in  fuch  cafes  ought  to  be  uniform,  certain,  and  flated,  and 
determined  on  fixed  principles,  as  they  are  to  extend  to  all  nations:  I  ao-ree, 
the  infurers  are  fubjeft  to  all  the  perils  in  the  courfe  of  the  voyage  ;  and  that 
in  all  mercantile  matters,  the  intent  of  the  parties  is  to  be  confidered  :  the 
policy  is  upon  the  body  of  the  fhip,  and  the  lofs  is  confined  to  loflirs  at  fea  ; 
whereas  here  it  is  part  of  the  declaration,  that  it  is  a  lofs  at  land :  it  is  a 
policy  from  London  to  all  parts  beyond  the  Cape  of  Good  Hope  and  a  return 
home  ; — put  the  fuppofition  made  by  the  plaintiff's  counfel  of  burning^  the 
hull,  and  faving  the  fails,  in  other  words,  and  it  will  come  out  thus  :  what 
they  have  infured,  viz.   the  hull  is  loft,   and  they  muft  be  anfwerable  for  it : 

6  X  what 


562  USAGE. 

what  they  have  infured,  viz.  the  fails  is  not  loft,  and  therefore  they  are  not 
anfwerable  for  them  :  not  an  article  in  the  cafe  of  Ticrncy  v.  Eiherington  is 
appticable  to  the  prefent  queftion :  if  the  mafter  takes  the  fails  from  the  infured 
{hip,  and  puts  them  in  another,  v/here  they  are  burned,  the  infurers  are  not 
anfwerable  :  the  Royal-Exchange  AJJurance-Company  by  their  parliamentary 
charter  cannot  infure  at  Land  :  the  cafe  of  Tierncy  v.  Etherington,  17  Geo. 
2,  is  the  only  cafe  the  diligence  of  the  plaintiffs  counfel  could  find  out;  and 
in  that  cafe,  the  queftion  was  not  upon  the  general  ufage  of  policies,  but 
upon  a  particular  agreement :  it  likewife  differs  from  the  prefent  cafe, 
becaufe  it  was  clearly  a  peril  at  fea : — in  the  cafe  of  Pole  v.  Fitzgerald  (fee 
Privateer)  an  infurance  of  a  fliip  in  a  cruife,  in  all  latitudes,  for  three  months  ; 
the  court  was  of  opinion,  that  nothing  but  the  cruife  was  under  confideration; 
but  the  houfe  of  lords  confidered  the  words  of  the  policy,  and  not  the  intent 

of  the  parties. The  plaintiff's  counfel  in  reply  :  the  cafe  in  queftion  is  upon 

the  rigging,  which  by  the  common  ufage  is  generally  carried  oxijliore,  as  well 
as  left  upon  the  body  of  the  ftiip  :  this  lofs  falls  within  the  very  words  of  the 
policy ;  for  the  declaration  mentions  the  lofs  happening  between  the  time  of 
failing  and  returning:  the  kind  o{ necejjity  which  may  empower  the  captain 
to  go  out  of  his  way  is  not  fuch,  without  which  the  fliip  mull;  inevitably 
perifli :  as  to  the  objeftion,  that  by  their  charter  the  Royal-Exhangc  AJfarance- 
Company  cannot  infure  any  thing  on  land;  if  the  rifque  of  unloading,  &c. 
had  not  been  the  ufual  courfe,  it  ought  to  be  inferted  on  the  foot  of  the 
policy;  and  befides  the  merchants  of  London  are  not  obliged  to  take  notice 
of  the  charter  of  the  Royal-Exchange  company  :  the  company  themfelves 
aft  contrary  ;  for  the  aft  only  means,  that  they  fiiall  not  infure  houfes  or 
journeys  upon  the  continent ;  the  cafe  of  Tierney  v.  Etherington  was  not 
within  the  words  of  the  agreement ;  and  it  was  not  infifted  upon  to  be  a  peril 
at  fea,  rather  the  contrary :  it  is  certain,  that  the  policy  is  not  determined, 
and  that  the  infurers  would  have  been  liable,  if  the  fliip  had  been  loft  on  her 
return  home  : — the  defendant's  counfel  faid,  he  would  not  be  underftood  to  fay, 
that  the  contraft  was  determined  as  to  the  rigging,  but  upon  land  only;  and 
that  this  cafe  was  fimilar  to  removing  the  tackle  from  one  fliip  to  another. 

Lord  Mansfield,  after  fome  days,  delivered  the'opinion  of  the  court:  and 

having  Hated  the  cafe,  he  faid  the  queftion  was,  whether  the  infurers  have  infured 
the  ftiip  from  this  accident  ? — and  it  is  their  unanimous  opinion,  that  they 
have  ;  for  by  the  words  of  the  policy,  lofs  by  Jire  is  infured  againft:  and 
befides,  it  is  incumbent  upon  the  defendants  to  fliew  it  a  lofs  they  did  not 
intend  to  bear :  from  the  nature  of  thefe  kinds  of  agreements,  there  is  a 
fettled  rule,  viz.  if  the  chance  or  voyage  be  changed  by  the  fault  or  negli- 
gence of  the  mafter,  then  the  infurers  are  not  liable  :  but  they  engage  againft 
all  fortuitous  accidents,  provided  due  means  are  ufed  by  the  aftured  that  the 
thing  may  be  fafe  :  what  was  done  in  the  ufual  courfe,  or  from  nccejjity,  the 
infurers  muft  have  had  under  their  confideration ;  and  it  is  abfurd  to  fuppofe, 
that  when  the  end  is  infured,  the  means  ftiould  be  excluded :  if  an 
underwriter  infures  goods  to  the  landing,  he  infures  them  whilft  they  are  in  a 
boat  between  the  fliip  and  the  land :  if  it  is  cujlomary  to  go  out  of  the  way, 

the 


U  S  A  G  Ei  563 

the  infurers  are  certainly  liable  to  all  accidents  during  that  deviation :  the 
cafe  of  Bond  &  Gonjales,  cited  from  Salk.  445.  fettles  this  upon  general 
principles :  Tierney  &  Etherington,  cited  for  the  plaintiff,  as  fettled  at 
Guildhall  by  Lee,  chief  juftice,  and  afterwards  agreed  to  by  three  judges  of 
this  court,  was  looked  into,  and  found  truly  flated :  what  is  ufually  done  in 
fuch  a  voyage,  is  as  neceflary  as  if  included  in  the  words  of  the  policy  :  if  the 
mafler  goes  out  of  his  way  to  avoid  enemies  or  pirates,  it  is  the  fame  as  if  he 
had  been  drove  by  flrefs  of  weather:  the  only  objeftion  made  by  the 
defendant  is,  that  the  lofs  happened  on  land,  and  being  a  part  of  the  fliip, 
and  this  company  only  to  infure  upon  fea,  they  are  not  liable  :  the  anfwer  is 
very  plain,  the  words  of  the  policy  do  not  exclude  this :  I  fuppofe  a  (hip 
drove  by  a  hurricane  on  land,  and  the  fea  withdrew,  and  the  fhip  was 
burned,  or  the  tackle  was  taken  out  and  burned ;  this  is  only  a  pofTible  cafe, 
and  yet  the  infurers  are  liable:  the  poffibility  of  the  prefent  accident  mull 
have  been  forefeen  at  the  time  of  the  policy  :  if  it  had  been  an  accidental  lofs, 
the  mafter  might  have  excufed  himfelf :  the  China  voyage  being  defcribed, 
it  is  equal  as  if  the  particular  accident,  which  has  happened,  had  been 
defcribed  in  the  policy :  the  defendant's  counfel  was  fo  prefTed  by  the 
argument  of  the  plaintiff's  counfel,  that  he  was  obliged  to  fay,  it  refembled 
a  deviation ;  but  this  fuppofes  the  parties  to  infure  from  London  and  back 
again,  knowing  that  the  policy  would  be  determined  in  the  river  of  Canton, 
which  would  be  abfurd ;  befides  it  ought  to  make  a  diHerence  in  the  premium, 
yet  the  underwriters  have  kept  all  the  premium  as  upon  other  China 
voyages  :  the  cafe  of  changing  the  tackle  from  one  fliip  into  another,  is  not 
applicable  to  the  prefent  cafe  ;  the  identical  fljip  is  ellential,  for  that  is  the 
thing  infured :  it  is  certainly  true,  that  policies  are  not  to  be  extended  to 
cafes  omitted.  Pole  v.  Fitzgerald  is  not  applicable  to  the  prefent  cafe  ;  the 
queftion  there  was,  "  whether  it  was  a  partial  or  a  total  lofs  within  the 
meaning  of  the  policy  ?"  in  the  prefent  cafe,  the  defendants  knew  the  fhip's 
tackle,  &c.  would  be  put  in  the  bank-faul  as  ufual,  and  if  afked,  would 
have  infilled  upon  it,  as  being  the  moft  advantageous  method  for  them  ;  and 
it  would  have  been  a  negleft,  of  which  they  would  have  had  reafon  to 
complain,  if  a  misfortune  had  happened  to  the  tackle,  &c.  from  it's  not 
havuig  been  put  there  : — therefore,  upon  the  whole,  we  are  of  opinion,  that 
the  defendants  are  liable,  in  reafon  and  juftice,  and  within  the  words,  intent, 

and  meaning  of  the  policy. Judgment  for  the   plaintiff:  in  the  King's 

Bench. — 1  Burr.  341.  23  May  1757. — Pelly  v.  The  Roy.  Exch.  AJf.  Co. 

4,  See  Prelim.  Di/c.  20.  Average,  Barratry,  Bottomry,  Corn,  Conjlruclion , 
Convoy,  Cujlom,  Deviation,  Eajl-India  Ships,  Intendment,  Laxo-Merchant, 
Lighter,  Maritime  Law,  NeceJJity,  Negligence,  Ordinance,  Rcfpondentia, 
Return,  Sea- Laws,  Statutes,  Touching,  Unloading,  Vcrdicl,  Voyage,  Wages. 


VALUATION. 


V. 


VALUATION. 

1.  "X"  IT  "THEN  any  lofs  happens,   a  proof  of  the  vahae  of  the  thing 

V/V/      ferves  as  a  foundation  to  make  a  proper  demand  for  it :  now 

the  value  of  what  is  infured  being  inferted  in  a  policy,  and 

the  infurers  by  fuch  infertion  admitting  of  that  valuation,  nothing  will  remain 

to  be  proved,  fave  that  the  goods  valued  were  put  on  board. Though  by 

fome  laws  it  be  forbid  to  value  fhips  and  goods  above  their  real  worth,  yet 
infurers  commonly  abide  by  the  valuation  made  by  the  infured,  and  do  not 
refufe  to  admit  in  the  policy  any  rate  for  a  bale  named,  without  knowing 
what  it  contains :  as  they  receive  a  proportionate  premium,  it  is  but  reafonable 
they  (hould  be  determined  by  that  valuation  ;  except  the  infured  has  had  it 
in  his  power  to  damnify  his  goods  :  and  when  any  evidence  is  offered  of  his 
having  fo  done,  a  judge  and  jury  ought  to  infill  upon  the  real  value  being 
proved: — if  they  be  found  to  be  greatly  over-rated,  it  will  naturally  corro- 
borate the  teftimony  of  their  being  wilfully  damaged  ;  otherwife,  it  will  clear 
the  infured  from  all  fufpicion,  where  the  evidence  is  not  plain  and  pofitive, 
and  procure  a  fentence  in  his  favour,  though  the  real  value  appeared  to  be  a 

fmall  matter  lefs  than  that  fixed  upon  them. To  obtain  what  is  aimed  at 

by  a  valuation,  it  is  not  fuflRcient  to  make  it  in  the  lump,  at  fo  much  per  bale 
or  cheft,  becaufe  this  would  only  ferve  in  cafe  of  a  total  lofs :  but  to  make  a 
valuation  of  fervice  where  goods  are  damaged,  or  partly  loft,  the  policy  mufl 
exprefs  -wXizi  particular  goods  they  were,  and  their  value,  at  a  certain  price  by 
the  piece,  yard,  pound,   &c.   the  infured  paying  the  premium  in  full  on  that 

amount. Some   circumftances    render   it   more    particularly  neceffary  to 

make  a  valuation  in  the  policy ;  as  in  infurances  where  the  goods  flapped  are 
greatly  rifen  in  price  fmce  the  time  when  they  were  bought  and  embarked, 
or  infured : — wheat,  for  inftance,  may  have  coft  2as.  per  quarter,  and  before 
the  (hip's  departure,  or  arrival  at  her  deftined  port,  may  be  worth  where 
fhipped  30s.  in  which  cafe,  the  proprietor  is  certainly  at  liberty  to  infure  it 
at  the  high  price  ;  but  he  fliould  exprefs  it  in  the  policy  to  be  worth  fo  much 
per  quarter : — to  illuflrate  this  flill  more,  we  may  obferve  that  thofe  who 
have  refided  at  Cadiz,  know  that  a  quintal  of  iron  (which  with  all  charges  on 
board  Hands  in  about  4  to  4:^  dollars)  is  worth  at  leaft  6  dollars,  fo  foon  as 

it 


VALUATION.  ^6s 

It  is  laden  in  a  fhip  licenfed  for  La  Vera  Cruz,  at  the  freight  flipulated  by  the 
Spanifli  ordinance,  ^vhich  is  limited  to  a  dollar  and  a  quarter  at  moll  per 
quintal :  other  goods  paying  a  much  higher  freight,  the  owners  of  fhips  never 
accept  of  more  iron  than  what  is  fufficient  to  ballall  them;  and  therefore 
this  commodity  is  fcldom  over  plenty  at  La  Vera  Cruz,  where  it  generally 

fells  for  ten  dollars  per  quintal,  or  upwards. When  a  perfon  infures  upon 

goods  he  expefts  from  places  where  no  courfe  of  exchange  is  current,  or 
where  alterations  in  the  value  of  their  coin  may  be  made,  the  fpecifyino-  of 
it's   value  and  correfpondence  with  ours,   in  the   policy,  is  a  very  neceffary 

precaution. — i  Mag.  ^^,  36. The  method  in   England  of  valuing  in  the 

policy  each  pagoda,  or  rupee,  laid  out  in  goods  fhipped  from  the  Eaft-Indies, 
at  a  certain  number  of  fliillings  flerling  agreed  on  [viz.  9  to  10  fliillings)  is 
eligible:  for  if  the  goods  or  filver  fent  out  produced  a  confiderable  benefit, 
that  benefit  will  be  found  in  the  quantity  of  the  Eaft-India  coin  ;  and  if  it  be 
publicly  known  (for  inftance)  that  a  pagoda  employed  in  diamonds  vields 
10  or  11  (hillings  fterling  in  England,  the  infurers  will  never  objetl  ao-ainfl: 
fuch  a  valuation  of  each  pagoda  in  the  policy. — Ibid.  28. 

2.  Goods  fent  from  places  where  no  exchange  is  current,  as  from  the 
dominions  of  Spain  and  Portugal  in  America,  and  not  valued  in  the  policy, 
ought,  in  cafe  of  a  total  or  partial  lofs,  to  be  reckoned  to  the  infurers  at  no 
higher  value  than  what  bullion,  or  the  aftual  coin  or  fpecie  brought  from 
thence,  will  produce  in  Europe,  after  the  payment  of  a  premium  for  the 
rifque  of  the  voyage,  freight,  &c. — To  explain  this  more  fully  :  the  fame 
fpecie,  or  Mexican  dollar,  which  when  brought  to  Cadiz  paffes  there  for 
10 1-  rials  plate,  and  is  worth  in  London  about  4s.  gd.  fhould  not  be 
valued  in  an  infurance,  when  fliipped  at  La  Vera  Cruz,  at  fo  much  as  4s.  gd. 
becaufe  thofe  dollars  are  not  worth  that  price  till  delivered  afiiore  at  Cadiz; 
and  there  they  cannot  fafely  be  landed  without  paying  the  following  freight, 
indulto,  &c. : — for  example  ; 

In  X753,  on  1,000  pieces  of  eight,  in  the  lall  fhips  from  La  Vera  Cruz,  at  Cadiz, 
The  king  took  for  indulto  and  marina      --.....-c) 

The  captain  of  the  fhip   for  freight  and  counting     -----     3    ;. 

The  confuiado      .-.-.----------1         >-14t   per   cent. 

The  almirantafgo       --._-.--------        ,u 

Church  and  loan  --_--.--.---.-  |_ 
And  confequently  every  1,000  pieces  of  eight  fhipped  at  La  Vera  Cruz,  yielded  neat  to 
their  owner  at  Cadiz  but  858  pieces;  which  at  io|  rials  of  plate  each,  is  g,ii6i  rials  of 
plate,  and  at  41  pence  for  eight  rials,  is  at  London  3s.  lod.  j  flerling  for  each  piece  of 
eight;  the  infuring  of  which  to  pay  98  for  100,  is  rating  them  at  3s.  1  id.  i :  fo  that  each 
piece  of  eight  (hould  not  be  valued  in  a  policy,  at  London,  for  above  four  fliillings 
fterling ;  becaufe  the  infured  could  not  polTibly  have  made  more  by  the  fpecie,  had  the 
fhip  come  fafe. — Mtreovcr  with  regard  to  returns  made  in  goods,  if  the  infured  does  not 
declare  what  they  are,  nor  make  any  particular  agreement  to  value  and  infure  a  certain 
quantity,  or  weight,  at  a  certain  price,  the  infurers  are  no  ways  concerned  in  the  profit  or 
lofs  the  infured  may  make  by  the  adventure,  they  being  only  anfwerable  for  it  s  firft  coft 
reduced  into  Cadiz  money,  at  the  fame  rate  a$  fpecie  brought  from  La  Vera  Cruz  fhall 
produce  neat,  fafely  landed  at  Cadiz. — Ibid.  41. 

6  Y  3.    In 


^66  VALUATION. 

3.  In  the  war  between  England  and  France  (in  1744)  fo  many  of  the 
French  infurers  failed,  that  moft  of  their  infurances-  came  to  be  made  in 
Eno-jand :  great  numbers  of  their  fhips  being  taken,  the  premiums  ran  up 
from  18  to  40  per  cent,  from  their  fugar  illands  to  France  : — fo  great  a 
temptation  to  our  Englifh  infurers  made  them  write  away  blindfold  in  many 
refpecls,  and  fubmit  to  a  valuation  of  1 1  pence  fterling  for  a  Martinico  livre  : 
the  Frenchman  moreover  might  infure  the  premium,  fo  as  to  leave  him 
eleven  pence  clear  for  each  livre  (hipped  in  the  Weft-Indies,  notwithftanding 
that  few  could  be  ignorant  of  the  American  currency's  being  above  33  per 
cent,  worfe  than  the  money  in  Old  France  ;  which  at  the  exchange  of  about 
324  d.  per  crown  of  three  livres,  renders  the  Wejl-Indian  livre  to  be  in  reality 
not  worth  8d. :  fo  that  if  the  valuation  of  1 1  pence  was  admitted,  the 
premium  of  infurance  ought  to  have  been  underftood  as  comprehended  in  it ; 
yet  our  infurers  allowed  the  contrary  ;  and  by-ftanders  were  furprifed  to  fee 
many  men  of  experience  underwrite  policies,  where  fome  of  our  enemies 
were  fure  to  get  more  by  the  lofs  of  their  fliips,  than  by  their  fafe  arrival : 
which  may  be  illuftrated  by  the  following  calculations,  hmilar  to  fa6ls  which 
at  that  time  really  happened  ; — viz. 

A  perfon  infures  in  London  6,oool.  fterling,  to  be  paid  98  per  cent,  in  cafe  of  lofs,  on 
goods  from  Martinico,  and  the  livres  of  that  place  to  be  valued  at  1 1  pence  fterling 
each  ;  at  a  premium  of  40  per  cent. : — the  fliip  was  taken,  and  an  account  fent  from 
France,  that  300  hogfticads  o^ fugar  had  been  fhipped  for  the  infured,  viz. 

100  hhds.  brown,  neat  800  cwt.  which  coft  at  Martinico         at  £^16     -    £"12,800     o     o 

100  ditto   terrc,  800 --..30-        24,000     o     o 

100  ditto  white,  800     -----------40-        32,000     o     o 

£^68,800     o     o 
Domaine   1  per  cent.    -.------•------      -      688     o     o 

Rabatage        - 55°     <>     » 

£'70,038     o     o 

At  1  id.  fterling  per  livre,  is -     -      £^3,210     i     6 

Infurance  at  40  per  cent,  for  98,  required  to  be  covered  in  full,  is £"5,534     2,213  ^^     o 

5'423   13     6 

Thus  the  infurers  had  to  pay  for  £5,534,  at  98    per  cent.      -     -      -     £"5,423     7     o 
And  to    return  the   premium   for     £466,  at  391  percent.     -     -      ,  184     i     o 

£"5,607     8     o 

Now  it  appeared  by  advices  received  of  the  prices  of  fugars  at  that  time,    that  the  above- 
mentioned   parcels   (after  deducing   10,    5,  and  2\  per  cent,  for  leakage,  and  lofs  in 
weight)  could  not  have  yielded  above 
720  cwt.  brown,  at  £"30     --------------      £"21,600     o     o 

760  terrc,  ^o     --------------         30,400     o     o 

780         white,  25---,-.,-,---.-        42,900     o     o 

£"94,900     o     o 
Deduft 


VALUATION.  567 

Deduct  for  freight  at  20  deniers  per^^'  with  10  per 

cent,   average     -     -     -     -     -     -     -     -     --.-        ^£"22,000 

For  other  charges      ------_.._.-      gGo 

22,960  o  o 

Confequently  if  the  fliip  had  come  fafe  it  would  have  yielded  but      -     -      711940  o  o 

And  this  at  iid.  ftcrhng  is     -.----.------.       3,297  5  o 

And  for  return  of  premium  no  more  could  have  been  received  than  as  above       184  1  o 

So  the  infured  was  bettered  by  the  (liip's  being  taken        _-.-..       2,126  2  o 

£5,607  8  o 


It  is  true,  that  the  prices  of  fugars,  which  before  the  war  had  been  at  24I. 
the  brown,  30I.  the  terre,  and  52L  the  white,  in  the  French  illands,  Went 
lowering;  and  in  France,  they  rofe  above  what  they  are  here  computed  at ; 
fo  that  they  could  bear  to  pay  a  high  premium  of  infurance ;  nevertheiefs 
they  did  not  rife  fo  much  as  to  clear  befides  this  the  high  valuation  of  1 1 
pence  per  livre  : — our  opinion  is,  that  the  intention  of  thole  who  firtt  defired 
to  have  a  livre  valued  at  1 1  pence  was,  that  the  premium  fhould  be  included 
in  that  valuation ;  for  is  it  reafonable  to  imagine  that  any  one  would  give  a 
premium  for  more  than  his  returns  could  polhbly  produce  ?  It  may  moreover 
have  happened,  that  the  people  here,  who  introduced  this  method,  hardly 
gave  themfelves  the  trouble  of  a  calculation,  or  fo  much  as  to  confider  about 
it,  lince  it  feems  clear  to  us,  that  if  they  had,  they  would  have  avoided 
expofing  their  correfpondents  to  the  rifque  of  failing,  by  paying  premiums 
for  what  their  engagements  could  never  produce. In  the  war  above  men- 
tioned indigo  was  a  commodity  that  for  a  long  while  did  not  fail  proportion- 
ably  in  the  French  illands,  and  rife  in  France  :  therefore  whatever  Frenchman 
over-infured  in  England  on  his  indigo,  or  had  not  the  full  returns  flnpped, 
would,  in  cafe  of  the  fliip's  being  taken,  be  a  confiderable  gainer  upon  the 

valuation    of    11    pence   for   a   livre    of  the   French  illands. We  think 

that  the  right  method  of  infuring  from  the  French  IJlands,  would  be  to 
fpecify  always  in  the  policy,  at  what  prices  the  different  forts  of  fugar, 
indigo,  coffee,  and  cotton,  fhall  be  rated  at  clear  on  board ;  and  for  what  is 
not  fo  rated,  to  fay  that  each  livre  fhall  be  valued  at  eight-pence  fterling, 
premium  included :  agreeably  to  this,  in  the  regulation  of  a  lofs  of  an 
infurance  made  at  Marfeilles  in  173S,  by  Mr.  Lewis  Marfeille  Marion,  a 
merchant,  and  Mr.  Jofeph  Jullien,  a  broker,  of  that  place  (who  were  nomi- 
nated arbitrators  in  the  affair)  they  calculated  on  the  value  that  a  Spanifh 
piftole  bore  in  France,  and  in  the  fugar  illands ;  it  felling  then  at  Marfeilles 
but  for  19  livres,  14  fols,  though  it  paffed  in  the  illands  for  27  livres  :  fuch  a 
livre  fliould  not  therefore  be  admitted  at  London  for  more  than  eight-pence 

in  time  of  peace. Befides  this  general  valuation  introduced  in  London, 

though  of  fo  bad  a  confequence,  others  of  a  ftill  worfe  tendency,  were  not 
refufed  to  be  admitted,  agreed  to,  and  underwrote  :  fuch  as  infuring  inlcrcjl 
or  no  intereft,  and  on  goods  valued  at  the  fum  infured,  without  further  proof 
than  the  policy,  in  cafe  of  a  total  lofs :    which  gave  occafion  to  frauds ;  but 

it 


568  V.     A      L      U      A      T      I      O      N. 

it  was  wifely  put  a  flop  to,  by  pafling  an  a£l  of  parliament  to  prohibit  infuring 
either  (hips  or  goods,  appertaining  to  the  crown  and  fubjefts  of  France, 
during  the  continuance  of  the  war  with  them. — Ibid.  43,  45.  (See  France). 

4.  The  fliares  of  Jhips  ought  alfo  to  be  precifely  valued  in  the  policy, 
when  it  is  not  their  firft  voyage,  becaufe  it  will  be  difficult  to  prove,  what 
their  worth  may  be  in  fubfequent  voyages,  or  what  is  really  loft  of  the 
original  value  by  wear  and  tear : — if  the  owner  of  a  quarter  part  of  a  vefTel 
values  it  in  the  policy  at  500I.  and  only  gets  400I.  infured,  it  is  clear  that 
he  ought  to  be  confidered  as  an  infurer  for  lool.  himfelf ;  and  although  in  a 
grojs  average  the  infured's  fliare  may  be  charged  but  at  the  value  of  400I. 
he  muft  neverthelefs  bear  his  part  for  lOol.  of  that  average,  as  a  joint  infurer 
with  the  reft : — people  not  duly  weighing  things,  and  confidering  them  as  they 
ought,  often  make  over  or  under  appraifements,  to  their  own  lofs  : — if  a 
perfon  intends  to  be  no  lofer  by  his  valuation,  he  muft  infure  to  the  full 
the  fum  he  values  his  goods  at,  and  pay  the  premium  for  it :  yet  this  muft 
be  obferved,  that  in  cafe  the  infured  hath  fomewhat  over-valued  his  goods, 
and  on  their  fafe  arrival  they  really  produce,  when  fold,  lefs  than  the 
valuation ;  whatever  he  paid  for  premium  on  fuch  over-valuation  will  be  a 
proportionate  leflening  of  his  profits. — Ibid.  36. 

5.  Lord  Mansfield  faid, — it  is  fettled  that,  upon  a  valued  polic^,  the 
merchant  need  only  prove  fome  intereft,  to  take  it  out  of  the  ftat.  19  Geo.  2; 
but,  if  it  ftiould  come  out  in  proof  that  the  valuation  was  merely  as  a  cover 
to  a  wager;  or  that  a  man  had  infured  2,oool.  and  had  intereft  on  board  to  the 
value  of  a  cable  only;  it  would  be  confidered  as  an  evafion  ;  by  which  the 

acl  of  parliament  may  be  defeated : the  only  eff'eft  of  a  valuation  is, 

fixing  the  amount  of  the  prime  coft;  juft  as  if  the  parties  admitted  it  at  the 
trial :  but  in  every  argument,  and  for  every  other  purpofe,  it  muft  be  taken 
that  the  value  was  fixed  in  fuch  a  manner,  as  that  the  infured  meant  to  have 
an  indemnity: — if  it  be  under-valued  the  merchant  himfelf  ftands  infurer  of 
the  furplus ;  if  it  be  over-valued,  it  muft  be  done  with  a  bad  view  to  a  frau- 
dulent lofs :  therefore  the  aftured  can  never  be  allowed  in  a  court  of  juftice, 
to  plead  that  he  has  greatly  over-valued,  or  that  his  intereft  was  a  trifle  only. 
— Lewis  V.  Rucker. — 2  Burr.  1 167. 

6.  Lord  Mansfield  faid, — an  over^valuation  is  contrary  to  the  general 
policy  of  the  marine  law  ;— contrary  to  the  fpirit  of  the  aft  of  19  Geo.  2  ;  a 
temptation  io  fraud,  and  a  fource  of  great  abufe ;  therefore  no  man  fliould 
be  allowed  to  avail  himfelf  of  having  over-valued. — Hamelton  v.  Mendes. — 
2  Burr.  1198. 

7.  The  owners  or  infured  ftiall  have  the  liberty  to  value  the  ftiip  with  all 
her  appurtenances  in  the  policy,  for  the  whole,  or  each  for  his  fliare,  but  not 
above  the  true  value ; — and  no  valuation  in  the  policy  ftiall  take  place  of 
goods  and  eftedis,  whereof  the  real  coft  or  value  can  be  produced. — Ordin. 
of  Avijl. 

8.    As 


VALUATION.  569 

8.  As  the  making  infurances  for  a  greater  fum  than  what  each  aflbrcd  is 
concerned  for  in  a  fhip  may  occafion  great  damages  and  inconveniences, 
no  perfon  for  himfelf,  nor  in  the  name  of  another,  fliall  get  more  infured 
than  what  the  goods,  or  things  afTured,  the  cuflorns,  charges  till  on  board, 
and  premiums  of  infurance,  fhall  effedually  amount  to,  on  penalty  of 
the  annulling  fuch  infurance;  underftandmg  it,  that  the  affured  (hall  be 
obliged  to  run  the  rilque  in  the  whole  of  ten  per  cent,  and  can  only  infure 
the  remaining  ninety  per  cent. :  but  in  cafe  the  affurers  agree  that  the  whole 
(hall  be  infured,  any  one  may  do  it,  exprelhng  this  circumflance  in  the 
policy,  except  the  fame  ajfured  owner  fhall  fail  with  his  goods  in  the  veffel ; 
becaufe  in  this  cafe  he  (hall  be  precifely  obliged  to  run  the  rifque  of  the  ten 
per  cent,   under  the  faid  penalty  of  nullity.— Orc^tn.  of  Bilb. 

9.  If  infurance  be  made  on  the  hull  and  keel  of  a  fliip,  her  tackle, 
apparel,  fitting,  and  victualling,  or  on  a  part  thereof,  the  valuation  fhall  be 
made  in  the  policy  :  the  infurer  neverthelefs  in  cafe  of  fraud  may  infill  on  a 
new  valuation.— (^r^iw.  of  France. 

10.  Remarks. — The  vague  and  loofe  manner  which  too  much  prevails 
inthebufmefs  of  infurance  (the  confequent  mifchiefs  whereof  are,  in  numerous 
inflances,  defcribed  in  the  courfe  of  this  work,  and  cfpecially  in  the  PrelinZi 
Difc.J  often  appears  in  what  regards  valuations : — it  is  not  unufual  to  fee  a 
policy,  completed  with  fubfcriptions  to  a  large  amount,  on  (liip,  freight,  or 
goods,  or  on  all  of  them,  wherein  has  been  inferted  a  claufe  that  one  or  more 
of  thof.  interefts  conjointly  or  each  refpeftively,  as  it  maybe,  are  and  lliall  be 
"  valued  at,    viz.    the  Jlnp  at  1.  freight  at  1,    and  goods  at 

1. ;"  leaving  the  fums  in  blank :  fo  that  the  afTured  has  been  at 
liberty,  at  any  time  afterxoards,  to  fill  up  fuch  blanks  with  fuch  valuations, 
in  figures,  as  he  fhould  find,  according  to  events,  might  fuit  his  own  particular 
views  of  benefit ;  or  according  to  the  greater  or  lefs  fums  which  have  been 
infured  on  each  intereft  or  article  refpeclively,  or  otherwife  ;  and  without  apply- 
ing for  the  confent  of  the  infurers  ;  who  have  entirely  difregarded  fuch  blanks  ; 
by  which  means,  very  undue  advantages  have  been  taken  of  them  in  fome  refpefl 
or  other,  in  the  mode  of  flating  the  demand  for  lodes,  averages,  returns,  and 
in  cafes  of  falvage,  recapture,  &c.  : — and  fometimes,  when  a  valuation  has 
been  regularly  inferted  in  the  policy  (as  it  ought  always  to  be)  at  the  time  of 
making  the  infurance,  applications  have  been  a  good  while  afterwards  made 
to  the  infurers,  for  their  confent  to  make  an  alteration  of  fuch  valuation  to  a 
fmaller  or  larger  fum  (their  eafy  and  current  difpofition  feldom  letting  them 
perceive  any  alteration  thereby  in  their  rifque)  to  which  therefore  they  are 
generally  very  ready  to  agree;  although  it  is  very  likely  that  fome  intelligence 
received  by  the  aflured,  of  favourable  or  unfavourable  circumftances, 
concerning  the  fituation  of  the  fhip,  a  confiderable  time  after  her  d.-parture, 
is  the  true  motive  for  requiring  fuch  an  alteration ;  fo  that,  in  cafe  of  her  faf^ 
arrival,  the  valuation  being  Uffencd,  will  enable  him  to  obtain  on  the  large 
fum  infured  (to  the  amount  of  the  original  valuation}  a  return  of  premiun) 

6  Z  for 


570  VALUATION. 

for  tlie  over-inflirance ;  but,  on  the  contrary,  if  he  forcfces  by  any  means  a 
great  danger  of  lofs,  average,  falvage,  &c.  he  lets  the  original  valuation  (land, 
or  applies  to  the  infurers  for  their  confent  to  increafe  it,  and  by  obtaining 
further  fubfcriptions  accordingly,  fecures  to  himfelf  a  handfome  additional  profit 
fliould  any  fuch  expefted  finider  event  happen  : — if  I  had  not  feen,  and  were 
not  convinced,  that  manceuvres  of  this  and  fimilar  kinds  arc  frequently 
praftifed,  I  fliould  not  trouble  my  readers  nor  myfelf  with  this  notice  of  them, 

There   is  another  matter  with  refpeft  to  valuations  which  is  worthy  of 

attention  :    for  inftance — an  owner  of  a  (hip,  which  at  her  departure  for  fea  is 
really  worth  1,5001.   on  making  infurance  of  her,  values  her  in  the  policy  at 
no  more  than  i,oool.:    during  her  voyage  (he  fuflains  damages  by  going  on 
fliore  and  other  accidents,   and  the  amount  of  repairs  are  600I.    from  which 
i  being  dedu6lcd,  as  ufual,  in  confideration  of  the  new  work  and   materials 
in  place  of  the  old,  there  remain  400I.  to  be  paid  by  way  of  average: — now, 
this  400I.  ought  to  be   borne  by  the  real  value  of  1,500!.  making  26I.   13s, 
4d.  per  cent,    and  not  by  i,oool.   the  nominal  value,    which  would  make  40 
per  cent. : — and  yet  it  is  certain  that  averages  on  Ihips  under-valued  are  very 
often  paid  by  this  latter,    and  erroneous   calculation  : — whereas,   in  cafe  of 
average  (whether  on  fliip,  goods,  or  freight)    the  policy  ought  to  be  opened, 
if  there  be  an  under-valualton ;    becaufe  the  fa6l  is,  that  the  allured  chufes  to 
run  the   rifque  himfelf   of    whatever  fum  that  valuation  may  be   Ihort  of 
the  real  value,    and  confequently  ought   to  bear  fuch  a  proportion    of  the 
damages  fuftained;    for  otherwife,   on  a  fhip  valued  in  the  policy  at  i,oool. 
but   really  w^orth  1,5001.    the  repair  of  whofe  damages    (in  which  is  often 
included  the  actual  rebuilding  of  an  old  rotten  fhip)  may  happen  to  amount 
even  to  1,5001.   and  deduding  therefrom  y  as  cuilomary,  the  infurers  would 
have  a  total  lofs  to  pay  (inftead  of  651.  13s.  4d.  per  cent,  which  only  would  be 
due  from  them)  whilft  the  owners  had  faved  the  premium  on  500I.   (by  being 
their  own  infurers  for  this  fum)   and  would  lofe  nothing ; — although  in  truth 
they  ought  to  bear  then  proportion  of  fuch  damages  at  661.  13s.  4d.  per  cent, 
on  the  faid  500I. ;    which  they  mufl  have  loft  entire  in  cafe  the  fliip  had 
foundered,  been  taken,    c?cc. — Were  infurers,   on  an  intereft  under-valued  in 
the  policy,    liable  (as  fome  perfons   fuppofe)    to  pay  the  whole  damage,  in 
cafes  oi partial  lofs    (inftead  of  the  proportion,  or  average  only)   owners  of 
fliips  and   proprietors  of  goods,   being  thereby  free   from   average   on  fuch 
portion  of  the  intereft  as  they  run  the  rifque  of  themfelves,  would  undoubtedly 
never  infure  their  whole  intereft,    or  make  an  over-valuation  of  it,    except 

when  they  had  reafon  to  exfiecl  a  total  lofs. For  the  fame  reafon  that  aifureds 

muft  bear  their  proportion  of  average  in  the  cafe  abovementioned,  fo  are 
they  alfo  entitled  to  be  confidered  as  their  own  infurers,  in  cafe  oi  falvage, 
for  fuch  fum  as  they  are  Jliort  injured  by  an  under-valuation,  and  to 
receive  accordingly  their  proportion  of  the  net  falvage  : — many  inftances  may, 
neverthelefs,  be  feen,  in  fuch  cafes,  where  the  underwriters,  after  having 
fetded  a  total  lofs,    have  erronoufly  claimed,  and  been   allowed  the  whole, 

inftead  of  \\\€\x  proportion  only  of  fuch  falvage. But,  where  the  valuation  is 

equal  to,   or  more  than  the  amount  of  the  intereji  covered,   then  it  is  clear, 

that 


R       D       I       C       T. 


57^ 


that  the  policy  need  not  be  opened,  either  in  refpeft  of  average,  or  falvage; 

which  mufl  be  calculated  upon  fuch  amount,  or  valuation. With  rei'peft 

to  what  degree  of  over-valuation  ought  to  be  deemed  fraudulent  P — we  feem, 
in  England,  to  have  no  fettled  idea,  or  rule ;  as  may  be  obferved  from  what 
was  faid  by  the  noble  judge,  in  the  cafes  above  referred  to: — according  to 
art.  13.  ch.  2,  01  the  Guidon,  "the  fraud  would  be  manifeil  if  the  valuation 
exceeds  z.  fuurlk.  a  third,  and  more  efpecially  a  halfoi  the  true  value  of  the 
thing." — An  over-valuation  is  more  eafily  to  be  difcovered  on  goods,  than  on 
z.J}iip,  the  current  price  of  the  former  being  more  generally  known  :  but,  even 
in  thofe  countries  where  the  allured  ihemfelves  are  obliged  to  run  the  rifque 
of  fome  part  of  the  interell,  or  where  they  are  not  allowed  to  infure  beyond 
the  true  value  thereof,  if  there  happens  by  mifiake  to  be  an  over-valuation  in 
the  pylicy,  the  infurancc  is  not  for  that  reafon  null ;  it  is  only  reducible  to 
the  true  value,  if  the  over-valuation  was  not  intentional:  but,  if  it  was  fo,  by 
art.  22.  of  the  ordin.  of  France  168 j,  the  infurance  is  not  only  invalid,  but 

the  effetls  are  fubjeft  to  confifcation. Under  the  refpeflive  heads  referred 

to  below,    the  reader  will  find  fundry  other  interefting  matters  concerning 
valuations. 

11.  See  Prelim.  Difc.  37,  54.  Abandonment,  Alteration  of  Policy  Voyage 
or  Rifrue,  Average,  Barter,  Blank,  Condemnation,  Contribution,  Damage, 
FiJIi,  Fraud,  Freight,  Goods,  Infured,  Interejl,  Interejl  or  no  Interejl,  Jettijon, 
Lqfs,  Market,  Particular-Average,  Privateer,  Profit,  Proof,  Provijions,  Recap- 
ture, Repair,  Rifque,  Salvage,  Ship,  Sugar,  Total  Lqfs,  Wager. 


VERA  CRUZ. 

1.  T^HE   rifque  being  for  New-Spain,   it  is  to  be  underftood   that  the 
J^     infurers  are  to  run  it  until  the  merchandife  be  delivered  at  St.  Juan 
de  Ulhua  in  boats,  and  carried  to  La  Vera  Cruz,  and  there  unloaded  in  fafety. 
— Ordin.  of  Spain. 

2.     See   Flota,   Ship  or  Ships,  Spain,   Valuation. 

VERDICT. 

1.  TN  the  Prelim.  Difc.  p.  15  to  20,  I  have  delivered  my  fentiments  with 
-^  freedom,  and  I  believe  with  truth,  upon  the  fubjeft  of  trials  and 
decifions  at  laxo ;  and  fhewn  the  caufes  of  their  frequent  futility  and  fallacy, 
as  well  as  vexation  and  enormous  expence,  more  particularly  in  cafes  of 
infurance :  I  alfo  fubjoined  brief  heads  of  a  more  effeftual,  and  therefore 
more  eligible  mode  of  difculling  and  determining  almoll  all  matters  of  difpute 
of  this  kind  ;  hoping  the  work  here  offered  to  the  world  may  prove  the 
means   of    promoting   an   ellablilhment   fo   abfolutely  neccflary,    from   the 

ample 


572  VERDICT. 

ample  affiftance  which  it  affords,   in  forming  a  right  judgment  upon  all  fuch 

matters. Lord  Mansfield  faid,    "  Oueftions  upon   policies  of    infurance 

ought  to  be  decided  by  the  large  principles  of  the  marine  law,  according  to 
the  fubftantial  intent  of  the  contraft,  and  the  real  truth  of  the  faH : — the 
daily  negociations  and  property  of  merchants  ought  not  to  depend  on  fub- 
tleties,  niceties,  and  fpeculative  refinements  ;  but  upon  rules  eafily  learned  and 
eafily  retained  ;   becaufe  they  are  the  diftates  of  common  Jen/e,   drawn  from 

the  truth  of  the  cafe." — Hamelton  v.  Mendes. — 2  Burr.  1191. His  lordfhip 

alfo  faid, — "  I  think  general  verdicls  are  not  to  be  regarded,  as  certainty  is 
never  to  be  had  from  them,  it  not  appearing  on  what  grounds  the  jury  found: 
and  in  general,  notes  of  cafes  taken  at  nifi  prius,  though  ever  fo  well  taken, 
and  decided  by  judges  of  ever  fo  high  authority,    are  liable  to  the  fame 

objeftion  for  fimilar  reafons." — Vallejo  v,  Wheeler. — 'Loft.  631. Now,  as  the 

verdift  of  a  jury,  upon  a  cafe  of  infurance,  ought  to  proceed  from  "  the  diftates 
of  common  fen/'e,  drawn  from  the  intent  of  the  contraft,  and  the  truth  of  the 
J'aEt,  and  not  to  depend  upon  yit/^^/f^zVi,  niceties,  dindi  fpeculative  refinevients ;" 
nothing  furely  can  be  more  obvious  than  the  great  impropriety  and  folly  (not 
to  mention  the  wade  of  time,  embarraffment,  and  expence)  of  fubmitting 
almofl;  all  our  differences,  in  fuch  cafes,  to  the  difcuffion  of  lawyers,  accuffomed 
to  deal  in  the  above-mentioned  commodities,  and  to  render  problematical  the 
moft  finiple  queftions :  cafes  that  even  the  greatefl  lawyers  acknowledge  to 
depend  upon  common  fenfe,  the  common  intendment,  and  ufage  of  merchants  ; 
which  being  beft  known  to,  might  therefore  be  in  general  better  decided  amongft 
themfelves,  by  fuch  an  amicable  judicatory  as  I  have  propofed  to  be  eftablifhed 
with  fuitable  authority  and  folemnity  ; — whereby  the  grand  and  ruinous  evils  of 
continual  reforts  to  courts  of  law  might  be  prevented,  and  the  principal 
defefts  (with  refpeft  to  infurance  caufes  in  particular)  of  the  otherwife  ever 
to  be  applauded  mode  o[  trial  hy  jury  removed. — "Thefe  defefts  are,  1.  the 
want  of  a  complete  difcovery  by  the  oath  of  the  parties,  except  by  the 
circuitous  method  of  a  bill  in  equity ;  2.  the  want  of  a  compulfive  power  for 
the  produftion  of  papers,  &c.  belonging  to  the  parties ;  3.  the  want  of 
powers  to  examine  xoitneffes  abroad,  and  to  receive  their  depofitions  in 
writing  where  the  witneffes  refide,   and  efpecially  when  the  caufe  of  aftion 

arifes  in  a  foreign  country." — 3  Black.  Comm.  382. 1  will  conclude  thefe 

obfervations  with  quoting  another,  which  may  further  fhew  the  difficulty  of 
difcovering  "  the  truth  of  the  cafe,"  as  well  as  the  uncertainty  of  obtaining  a 
right  verdift  thereupon  : — "  I  have  been  too  long  acquainted  with  human 
nature  to  have  great  regard  for  human  teftimony  ;  and  a  very  great  degree  of 
probability  has  greater  weight  with  me  than  human  teftimony  upon  oath,  or 
even  upon  honour;  both  of  which  I  have  frequently  feen  confiderably  warped 
by  private  views." — Lord  Chejlerfield' s  Letters  to  his  Son. 

2.  See  Prelim.  Difc.  17,  32,  85.  Amicable  Judicatory,  Concealment,  In- 
tendmcnt,  Jury,  Law  Lawfuit  &  Lawyers ,  Maritime  Laxo,  New  Trial, 
Precedent,  Trial,  Ufage, 

VOYAGE. 


C    573    3 
V        O        Y        A        G        E. 

1.  T  F  a  (liip  could  alter  her  voyage,  or  begin  another,  or  fiiould  agree  tb 
^  carry  other  goods  to  another  place,  or  other  infurances  fliould  be  made 
for  the  faid  fecond  voyage  ;  in  fuch  cafe,  the  infurers  for  the  firfl  voyage  are 
held  for  that  and  no  further;  for  when  a  (hip  deviates,  for  other  purpofes, 
from  it's  primitive  dejlination,  fhe  is  faid  to  have  altered  her  voyao-e,  and  to 
have  made  others,  and  her  firfl  is  faid  to  be  changed  : — this  holds  good  even 
though  the  fecond  voyage  fhould  have  been  only  begun,  and  not  completed: 
but  not  when  the  courfe  of  a  (hip  is  altered  through  a  juft  and  neceflary 
caufe. — Roccus,   \66.  not.  20. 

2.  Lord  Mansfield  faid, — if  the  chance  is  varied^  or  the  voyage  altered, 
by  the  fault  of  the  owner  or  mafler  of  the  fhip,  the  infurer  ceafes  to  be  liable  : 
becaufe  he  is  underftood  to  engage  that  the  thing  Ihail  be  done,  fafe  from 
fortuitous  dangers,  provided  due  means  are  ufed  by  the  trader  to  attain  that 
end : — but  the  mafter  is  not  in  fault,  if  what  he  did  was  done  in  the  iifual 
courfe,  or  neceffarily  ex  jujid  caufa: — the  infurer,  in  eftimating  the  price  at 
which  he  is  willing  to  indemnify  the  trader  againfi;  all  rifques,  muft  have 
undf^r  his  confideration  the  nature  of  the  voyage  to  be  performed,  and  the 
ufual  courfe  and  manner  of  doing  it :  every  thing  done  in  the  ufual  courfe 
muft  have  been  forefeen  and  in  contemplation,  at  the  time  he  engaged  :  he 
took  the  riftjue,  upon  a  fuppofition  that  what  was  ufual,  or  necejfary,  would 
be  done  : — it  is  abfurd  to  fuppofe,  when  the  end  is  infured,  that  the  ufual 
means  of  attaining  it  are  meant  to  be  excluded  :  therefore,  when  goods  are 
infured  "  till  landed ;"  without  exprefs  words,  the  infurance  extends  to  the 
boat,  the  ufual  method  of  landing  goods  out  of  a  fiiip,  upon  the  fhore : — it 
was  ruled  by  Lord  Chief  Juftice  Holt,  Bond  v.  Gonfales,  2  Salk.  445,  that  if 
it  is  ufual  to  ftay  fo  long  at  a  port,  or  to  go  out  of  the  way,  the  infurer  is 
confidered  as  underftanding  that  ufage. — i  Burr.  341. — Pellyv.  R.  E.  AJf.  Co. 

p.  Whilst  a  fliip  is  preparing  for  a  voyage,  upon  which  it  is  infured, 
the  infurer  is  liable ;  but  if  the  voyage  is  laid  afide,  and  the  fiiip  lies  by  for 
five,  fix,  or  feven  years,  with  the  owner's  privity,  the  infurer  is  not  liable. — 
2  Atkyns  359.  Trin.  July  20,  1742. — Chitty  v,  Selwin  &  Martin. 

4.  Case. — A  fiiip  was,  by  the  policy,  infured  from  Maryland  in 
America  to  Cadiz,  and  a  market,  but  was  cleared  out  for /iz/woM/A;  and 
having  been  loaded  with  a  cargo  of  American  wheat  and  flour,  (he  was  feized 
by  order  of  Lord  Dunmore,  the  governor  of  Virginia,  under  a  fufpicion  that 
the  cargo  was  or  might  have  been  intended  for  fupplying  the  American  rebels: 
— on  an  aftion  againft  the  infurer,  the  policy  was  vacated,  by  a  verdift  for  the 
defendant,  becaufe  the  Oiip  had  been  configned  to  a  port  different  from  the 
port  to  which  ihe  had  been,  by  the  policy,  infured ;  which  was  deemed  fuch 
an  alteration  of  the  voyage  as  made  it  a  difl'erent  rifque  from  that  which  was 

7  A  defcribed. 


574  VOYAGE. 

defcribefl,  and  undertaken  by  the  policy. — In  the  K.  B.  fitt.  aft.  Trin.  1778. 
at  Guildhall : — and  in  Mich,  term,  on  a  motion  for  a  new  trial,  and  the 
matt£r  being  argued  before  the  court,  the  new  trial  was  refufed,  and  the 
verdicl  confirmed. — Wooldridge  v.  Boy  dell. 

,5.  Case. — Two  merchants,  partners,  had  two  (hips,  the  Argyle,  Capt. 
Fiflier,  and  the  Jeanie,  Capt.  Dennillon,  to  fend  out  to  the  Bay  of 
Honduras :  one  of  the  partners,  who  refides  at  Greenock  (the  other  partner 
refiding  at  Glafgow,  at  the  diftance  of  about  fifteen  miles  from  Greenock) 
wrote  a  letter  on  the  8th  of  February  1772,  to  their  agent,  at  the  Bay  of 
Honduras,  accompanying  their  faid  fliip  the  Argyle  ;  and  defiring  the  agent 
to  load  her  with  mahogany  and  logwood,  and  order  her  to  London  ;  and  as 
they  Avere  to  fend  the  Jeanie  back  to  him  immediately,  by  the  way  of 
America,  defiring  him  to  load  her  as  above,  and  fend  her  direftly  to  Brijiol: 
and  by  letter,  or  failing  orders,  of  the  fame  date,  to  Capt.  Fifher,  he  defired 
him  to  proceed  to  the  Bay  of  Honduras,  there  to  deliver  his  goods  to  the 
ao-ent,  and  that  the  port  which  he  fliould  come  to  on  his  return,  might  be 
London,  but  in  that  he  fhould  follow  the  agent's  orders. — On  the  16th  of 
March  1772,  one  of  the  partners  wrote  to  the  agent,  that  notwiihllanding 
what  they  had  wrote  to  him  about  the  veffels  going  to  Erijlol,  to  two 
gentlemen  there  whom  they  named,  they  defired  he  would  confign  them 
to  another  gentleman  there,  named,  and  give  Mr.  Fifher  orders  to  proceed 
to  Briftol,  and  apply  to  that  other  gentleman  :  by  this  letter,  the  intention  of 
the  partners  appeared  to  be,  that  both  the  vefl'els  fhould  proceed  to  BriftoL — 
On  the  19th  of  March  1772,  the  partner  at  Glafgow  wrote  to  their  agent, 
at  Honduras,  to  fend  the  Jeanie  to  Loyidon,  and  referring  this  letter  to  his 
partner,  at  Greenock,  for  him  to  add  what  he  pleafed,  it  was  fealed  and 
forwarded  by  the  latter,  without  his  making  any  alteration,  or  recollecting 
or  attending  to  the  orders,  which  he  himfelf  had  formerly  given,  for  con- 
figning  the  fliips  to  BriJlol : — in  anfwer,  the  agent  adviftd  that  he  would  fond 
them  agreeable  to  the  orders  he  had  received  :  and  it  appeared  by  feveral  letters 
after  this,  between  the  partners  and  their  correfpondent  at  BriJlol,  that  they 
expefted  both  the  fliips  were  to  go  there. — On  the  19th  of  November  1772, 
they  gave  order  for  infuring  1,0501.  on  the  cargo  and  freight  of  the  Argyle ; 
lool.  was  fubfcribed  at  Glafgow  at  5  per  cent,  but  upon  advice  arriving  of 
a  hurricane  having  happened  at  St.  Kitt's,  they  were  obliged  to  give  10 
guineas  per  cent,  and  the  Argyle  having  afterwards  arrived  fafely  at  BriJlol, 

there  arofe  no  queftion  concerning  her. But,  as  to  the  Jeanie,   on  the 

27th  of  November  1772  and  following  days,  infurance  of  1,0501.  having  alfo 
been  made  on  her  cargo  and  freight,  to  Brifl;ol,  at  10  guineas  per  cent,  the 
infured  received  on  the  30th  of  December  1772,  at  Glafgow,  a  letter  from 
Honduras  of  the  2ifl:  of  September  1772,  advifing  that  the  Jeanie  had 
failed  the  4th  of  September,  and  on  the  7th  was  loft  on  the  Northern 
Triangles  ;  of  which  the  infured  informed  the  underwriters,  and  explained  to 
them  all  the  circumftances  of  the  cafe,  and  of  the  inadvertent,  though 
innocent  mijlakc  which  had  happened,  of  the  port  of  BriJlol  being  mferted 
in  the  policy,  and  the  port  of  London  in  the  confignment :    accordingly  two 

of 


VOYAGE.  gjs 

of  the  infurers  paid  their  fhares  of  the  lofs ;  but,  feme  time  after,  the  others 
fignified  that  they  held  the  pohcy  to  be  vacated,  by  what  they  called  the 
alteration  of  the  voyage: — whereupon  the  infured  brought  their  action  agalnft 
them  in  the  high  court  of  admiralty  in  Scotland,  to  recover  their  lof,  ;  and  the 
judge  admiral  decreed  the  defendants  to  pay  ;  but  afterwards,  on  a  petition 
of  the  defendants,  the  judge  altered  his  former  decree,  and  found  it  proved 
"that,  by  the  letter  of  the  19th  of  March  1772,  the  purfuers  (plaintitis)  did 
direft  their  agent  to  fend  the  (hip  Jeanie  and  her  cargo  to  London  ;  that  the 
agent  did,  the  2d  of  September  1772,  take  from  the  mafter,  at  the  Bay 
of  Honduras,  a  bill  of  lading,  for  delivering  the  cargo  at  the  port  of  London, 
and  not  at  the  port  of  Briflol— that  the  fhip  failed  for  London,  and  not  for 
Briflol,  to  which  port  of  Briflol  her  cargo  and  freight  were  infured  by  the 
defendants;  that  the  (hip  was  wrecked  foon  after  her  failing  fron  the  faid 
Bay ;  that  the  purfuers  (plaintiffs)  did  not  difclofe  and  lay  before  the 
defendants,  at  the  time  of  thtir  underwriting  the  policy  in  queflion,  their 
directions  to  their  agent,  for  the  deftination  of  the  fhip  to  the  port  of  London, 
nor  fet  forth  to  them  the  embarraffment  \vhii.h  might  be  occafoned  by  the 
contrary  orders  given  by  them,  relative  to  the  dedined  port  of  delivery  of  the 
faid  fhip  in  Britain,  whereby  the  defendants  might  have  fufhcient  lights,  to 
determine,  whether  or  not,  in  thefe  circumftances,  they  would  have  infured  ; 

therefore,  upon  the  whole,  found  the  defendants  not  liable." The  plaintiffs 

then  brought  an  aftion  of  reduftion  of  the  judge  admiral's  decree,  before  the 
lords  of  fe'.fion  ;   which  coming  on  to  be  heard  before  the    Lord  Auchinlcck 
ordinary,  his  lordfhip,  on  the  29th  of  January  1778,  approved  of  the  judge 
admiral's  decree  ; — but  againfl  this  decree  of  the  lord  ordinary,  the   plaintiffs 
preferred  a  reclaiming  petition  to  the  whole  lords  of  fcffion,   on  the  following 
grounds;  viz.    that  the  innocent  mijlake,    of  Briflol  being    inferted   in  the 
policy  of  infurance   inflead  of  London,  and  London  inflead  of  Briflol  in  the 
confignment,   fliould  not  make  the  infurance  void ;    that  the  policy  is  to  be 
conflrued  as  if  it  had  infured  to  Britain,   in  general ;    that  the  premium  was 
the  fame,  and  the  courfe  and  line  of  failing  the  fame  49  parts  of  50;   that  the 
fhip  was  wrecked  only  18  leagues  or  54  miles  from  the  loading  port,  in  the 
Bay  of  Honduras,  and  if  fhe  had  been  burnt  there,   after  her  lading,    the 
infurers  would  have  been  liable,   by  the  words  at  and  from  in  the   policy, 
without  regard  to  the  port  of  deftination  ;   that  if  the  fliip  had   arrived  at 
London,   the  infurers  would  have  held  the  premium  ;  and  that  the  fhip  having 
been  wrecked  in  the  precife  line  or  courfe  leading  to  Brijiol,   it  was  within 
the  rifcjue  infured  againfl: — but,  fay  the  defendants,  it  appears  from  the  bill 
of  lading,  that  there  was  an  intention  to  deviate  and  take  the  track  to  London  : 
— the  plaintiffs  reply,  that  a  bare  intention  to  deviate  has  no  effeft,   if  the 
deviation  be  not  carried  into  execution  :    that  as  to  the  objection  of  the  fhip's 
apparent  deftination  for  a  different  port,  and  that  the  voyage  infured  had  never 
commenced,  or  was  intended  to  be  performed ;  there  had  been  cafes  decided* 
in  Holland,  where  the  infurers  were  made  liable,  the  lofs  having  happened 
in  the  courfe  or  track  infured,  and  before  any  aftual  deviahon. 

Vid<  infra. 

Ths 


576  \r       (?       y'       A       &      E. 

The  following  opinions  of  different  counfel,  in  England,  were  taken  upon 
the  whole  of  the  above  cafe, — "  Whether  the  infurers  ought  to  be  liable  for 
the  lofs ;  and  whether,  if  the  matter  is  determined  againft  the  infured  in  the 
courts  in  Scotland,  they  will  be  well  founded  to  appeal  to  the  houfe  of  lords  ?" 

CoviiSEh's  opinion,  6th  of  March  1779. — *'  If  it  had  been  the  intention  of  the 
aflured,  at  the  time  the  (hip  left  her  port  in  the  bay  of  Honduras,  to  proceed 
on  the  voyage  infured  to  the  port  of  Briflol,  though  in  her  courfe  thither  fhe 
meant  to  go  firll  to  London,  the  lofs  happening  before  flie  reached  the 
dividing  point,  the  infurers  would  have  been  anfwerable  ;  but  the  purpofe  of 
going  at  all  to  Briflol  being  abandoned,  and  London  fubftituted  in  it's  place, 
the  objcftion  of  the  infurers  feems  to  me  well  founded  ;  the  voyage  was  a 
different  one;  the  rifque  infured  never  commenced;  and  confequently  the 
infurers  are  no  further  anfwerable  than  for  a  return  of  the  premium.  I  fee, 
therefore,  no  objeftion  to  the  interlocutor,  but  that  it  has  not  provided  for 
a  return  of  the  premium." 

Counsel's  opinion,  5th  of  July  1779. — "  I  am  not  aware,  that  there  is  any 
ufage  amongfl;  merchants  in  England,  fufficiently  frequent  and  uniform,  to  be 
of  any  weight  in  fuch  a  cafe   as  the  prefent;    on  the  contrary,  I  think  it 
probable,  that  if  fuch  a  cafe  had  happened  upon  an  infurance  made  in  London, 
it  would  have  created  a  difference  of  opinions  both  among  merchants,  and 
lawyers,  and  would  have  occafioned  a  ftrong  legal  conteft,      I  am    much 
inclined  to  think  that,  if  this  cafe  were  to  be  tried  at  Guildhall,  it  would  be 
decided  againft  the  infured  :    for  I  conceive  the  infured  can  never  recover 
againft  the  underwriters,  unlefs  at  the  time  the  voyage  commenced,  upon 
which  the  queftion  arifes,  it  was  intended  to  go  to  the  port  of  de/Iination 
named  m  ihe  voyage  injured :    that  is  to  fay,  unlefs  in  the  prefent  cafe,  it 
really  was  intended  to  go  to  the  port  of  Briftol,  at  the   time  tlie  fliip  Jailed 
from  the  Bay  of  Honduras;    for  if' it  had  been   defigned  then  to  hnilh  the 
voyage  at  Briftol,  an  intended  deviation  from  the   courfe  of   fuch  voyage 
would  not  have   difcharged  the  underwriters,  till  the  veffel  had  paffed  the 
dividing  point,  and  a  deviation  had  actually  taken  place  :    and  I  have  always 
underftood  the  rule  that  "  an  intention  to  deviate   (hall  not  avoid  the  policy," 
ought  to  be  taken  with  this   limitation,  that  the  veflel   fails   with  a  dejign 
ultimately  to  go  to  the  port  named  in  the  infurance,  at  the  completion  of  the 
voyage.     Upon  the  cafe  ftated,  at  the  time  the  fl^p  fet  fail  from  the  bay  of 
Honduras,  it  was  determined,  under  the  authority  of  the  owners  and  infured 
(and  the  clearances  of  the  veffel  were  agreeable  to  fuch  determination)  that 
fhe  fhould  not  go  to  Briftol  but  to  London  ;    another  voyage  than  that  which 
was  infured  was  clearly  commenced  and  intended  ;  and  therefore,  as  I  conceive, 
the  voyage  a6lually  commenced  is  not  within  the  policy,  whether  the  queftion 
arifes  upon  the  demand  of  a  lofs,  or  to  recover  the  premium  upon  the  ground 
that  no  rifque  was  infured  by  the  underwriters." 

Counsel's  o/'mzon,  5th  of  July  1779. — "  The  queftion  does  not  turn  upon 
the  fa6l  of  a  deviation,  or  an  intention  to  deviate,  but  upon  the  defcription 

of 


VOYAGE. 


577 


of  the  voyage  in  the  policy : — it  is  necefTary  to  dcfcribe  a  voyage  truly,  that 
the  underwriter  may  form  his  judgment  upon  the  premium  he  will  take  to 
indemnify  the  infured  againfl  the  rifque  of  the  voyage  defcribed,  and  above 
all,  to  determine  whether  he  will  chufe  to  become  an  infurer  or  not : — a 
voyage  from  the  Bay  of  Honduras  to  Briflol.  is  not  a  voyage  from  the  Bay  of 
Honduras  to  London;  unlefs  Briflol  lies  in  the  courfe  of  the  voyage  to 
London,  which  is  not  the  cafe :  it  feems  to  me  from  the  evidence,  the  fliip 
failed  upon  a  voyage  to  London :  (lie  was  cleared  out  for  London,  and  that 
even  in  confequence  of  orders  from  the  alfured  ;  and  there  is  no  ground  to 
fuppofe  the  mailer  ever  meant  to  go  to  Briflol. — The  cafes  of  deviation  have 
been,  where  a  fhip  was  really  intended  to  go  to  the  port  of  deflination 
mentioned  in  the  policy,  but  in  going  there  deviated  from  the  courfe  of  the 
voyage  ;  and  in  fuch  a  cafe,  wiulll  the  fnip  is  in  the  courfe  of  the  'infured 
voyage,  \i  diVx  accident  happen  before  flie  arrives  at  the  dividing  point,  the 
underwriters  are  liable ;  but  where  the  Ihip  fails  upon  a  different  voyage, 
without  an  intention  to  go  to  the   port  mentioned  in  the  policy,  I  am  of 

opinion,  the  underwriters  are  not  liable  to  the  rifques  of  that  voyage. A 

cafe  lately  happened  to  be  tried  at  Guildhall,  where  the  doctrine  of  deviation 
came  to  be  confidered  :  an  infurance  was  made  from  Maryland  to  Cadiz  ; 
the  fliip  was  cleared  from  Maryland  to  Falmouth,  and  the  bills  of  lading  were 
to  Falmouth  and  a  market,  and  it  was  contended  the  market  was  Cadiz  : 
the  fliip  was  taken  in  the  courfe  to  Falmouth,  and  alfo  to  Cadiz : — the  chief 
juflice  direded  the  jury  to  find  for  the  plaintiff,  if  they  were  of  opinion  the 
fliip  was  intended  for  Cadiz,  as  there  could  then  be  an  intention  only  to 
deviate  ;  but  if  they  thought  the  fliip  was  not  meant  to  go  to  Cadiz,  the 
voyage  was  not  truly  defcribed,  and  the  underwriters  not  liable :  and  the 
court  confirmed  the  direftion  of  the  chief  juflice." 

Counsel's  opinion,  July  1779. — "  I  underfland  it  to  be  the  tfage  of 
merchants,  that,  if  the  infured  voyage  is  begun,  notwithflanding  there  is 
proof  of  an  intention  to  deviate,  yet,  if  there  be  not  a  deviation  before  the 
lofs,  the  underwriters  are  liable  upon  the  policy ;  but  if  the  infured  voyage 
is  not  begun,  there  is  no  rifque,  and  the  policy  becomes  void :  fo  that  tlie 
queflion,  in  this  cafe,  is,  "  whether  the  voyage  the  fliip  began,  was  the 
iilfured  voyage  or  not?" — This  depends  upon  the  evidence  :  the  letter  of  the 
19th  of  March  1772,  is  proof  of  orders  to  the  correfpondent  at  the  Bay  of 
Honduras,  to  fend  the  fhip  to  London,  if  (lie  fhould  be  loaded  with  mahogany : 
the  fhip  being  (as  it  is  to  be  prefumed  from  the  evidence)  loaded  with 
mahogany,  was  cleared  out  for  London,  and  the  timber  configned  to  London, 
of  which  her  cargo  confifted :  fo  that  the  evidence  proves,  that  the  voyage 
which  the  flip  began,  was  not  the  infured  voyage,  that  being  a  voyage  from 
the  Bay  of  Honduras  to  Brijlol. — In  cafes  upon  policies  of  infurance,  the 
infured  has  ufually  every  favourable  con/lrudion  that  can  be  given  to  the 
policy,  when  it  comes  to  be  compared  with  the  event  to  make  the  under- 
writers liable  ;  and  this  is  fo,  for  the  benefit  and  encouragement  of  trade  ; 
but  when  the  fhip  is  cleared  out  for  a  different  voyage   than  the  voyage 

7  B  infured, 


578  VOYAGE. 

infured,  the  cafe  goes  beyond  all  power  of  conftruftion,  and  the  words  of  the 
policy  mufl:  be  changed:  there  is  no  inftance  I  know  of  which  goes  fo  far; 
the  flrongeft  cafe  upon  circumftances  like  the  prefent,  is  Carter  v.  The  Royal- 
Exchange- AJfurance,  cited  in  Fojler  v.  Wilmer. — Strange,  1249. — ^  ^°  "^^^ 
find  the  cafe  reported  originally  in  any  book;  fo  that  an  accurate  ftate  of  the 
circumftances  cannot  be  obtained :  it  feems  to  me,  from  the  application  of 
the  cafe  cited,  to  the  principal  cafe  of  Fojler  v.  Wilmer,  that  the  (hip  had  fet 
out  upon  her  infured  voyage  (to  London)  but  there  being  goods  on  board 
configned  to  Amfterdam,  this  was  ftrong  evidence  of  an  intention  to  deviate, 
yet  the  fiiip  being  loft  before  the  deviation  happened,  the  infurers  were 
liable  :  this  was  the  point  in  Fojler  v.  Wilmer :  and  it  is  to  be  prefumed,  that 
the  cafe  was  cited  for  the  purpofe  of  proving  the  point  before  the  court,  and 
not  a  different  point ;  for  the  queftion  in  Fojler  v.  Wilmer,  turned  upon  an 
intention  to  deviate,  and  not  vipon  a  different  voyage. — If  this  cafe  were 
depending  in  England,  and  to  be  tried  at  Guildhall,  I  am  inclined  to  think, 
that  the  verdift  would  moft  probably  be  for  the  defendants,  the  underwriters. 

1  do  not  fee,   that  the   cafe  can  be  more  fully  ftated,  or  placed  in  a 

better  view  than  it  is  ;  nor  do  I  know  of  any  authority  to  be  added  to  thofe 
there  cited. — I  think  \h.Q /pedes  faEli  will  admit  of  a  different  decifion,  than 
an  intention  to  deviate  ;  for  the  evidence  appears  to  me  to  prove  a  different 
voyage  from  the  voyage  infured." 

The  principal  arguments  urged  in  favour  of  the  infured,  in  the  foregoing 
cafe  of  the  Jeanie,  were, — viz.  1.  That  one  of  the  infured  partners  had,  by 
miftake,  dire6led  the  ftiip  to  be  cleared  for  London ;  the  premium  was  the 
fame  for  London  as  for  Briftol,  and  the  courfe  the  fame  for  49  parts  of  50 ; 
and  therefore  the  miftake  or  forgetfulnefs  of  the  infured,  did  not  occafion 
any  injury  or  prejudice  to  the  infurers  : — 2.  if  the  fliip,  after  being  loaded, 
had  been  burnt  at  her  port  of  lading,  in  the  Bay  of  Honduras,  the  infurers 
would  have  been  liable,  without  regard  to  her  port  of  deftination  : — 3.  the 
(hip  having  been  loft,  in  the  very  line,  courfe,  or  track,  leading  to  Brijlol,  her 
movement  was  within  the  coz^y^  e?7/Mre(^ ; — 4.  there  can  be  no  alteration  of 
the  voyage,  in  fad,  without  the  fliip's  movement ; — for,  words  in  a  confign- 
ment,  bill  of  lading,  &c.  however  expreffive  of  an  intention  to  alter  the  fhip's 
deftination,  cannot  alter  the  voyage  or  rifque,  without  the  actual  movement 
out  of  the  infured  line  : — 5.  no  body  can  fay  that,  if  the  fhip  had  not  been 
loft,  the  mafter  would  not  have  gone  to  Briftol ;  and  there  is  no  folid 
difference  between  a  deviation  from,  and  an  alteration  of,  a  voyage  infured ; 
and  an  intention  in  the  one  cafe  ought  not  to  have  more  effecl  than  in  the 
other: — 6.  the  clearing  out,  or  confgning  to  a  different  port,  does  not. prove, 
or  make  out  an  alteration  of  the  voyage,  or  of  the  rifque,  or  of  any  thing 
material;  being  nothing  more  than  an  ideal  matter,  di  folum  conflium  de 
mutando  itinere  (as  Bynkerftioek  has  it)  doing  no  hurt  to  the  infurers  ;  the 
place  where  ftie  was  loft,  being  the  locus  damni  dati,  a  quo  cejlimandum  eji 
de  pcricnlo,  quod  affccuratorcs  in  fe  receperunt,  this  is  fufficient  to  make  the 
infurers  liable ; — 7.  that  it  plainly  appears,  no  regard  is  paid  in  Holland  to  a 

bare 


VOYAGE.  gyg 

bare  intention,  refoluticn,  or  determination  for  altering  the  voyage  or  the 
rifque  ;  and  that  it  is  nothing,  unlefs  it  atiuaWy  hurts  the  infurers  ;  and,  it  is 
common  fenfe,  and  common  juftice,  that  it  ought  to  be  fo  in  EnrLand,  and 
every  where  elfe  : — 8.  no  other  judgment  can  juflly  be  made  on  the  matter^ 
than  as  in  the  cafe  of  an  intentional,  or  aElual  deviation  : — ^9.  the  EngHfli 
cak  oi^  Fojter  v.  Wilnicr,  and  the  cafe  therein  cited  of  Carter  v,  the  Roy.  Exch, 
A/f.  Co.    are  clearly  authorities  for  the  alfured  in  this  cafe,   joined   with  the 

authority  of  the  celebrated  BynkcrJJioek. Upon  thefe  grounds,  the  infured 

applied  to  the  lords  of  fejjion,  by  petition,  for  leave  to  give  in  a  reply  for 
them  to  the  anfwer  of  the  infurers  ;  but  the  court  having  refufed  to  allow  any 
reply  to  be  given  in,  and  having  confidcred  the  matter,  upon  the  petition  and 
anfwers,  determined  the  queflion  in  favour  of  the  infurers,  by  adhering  to 
their  former  interlocutor,  and  refufing  the  petition  of  the  infured. 

6.  A  SHIP  iiifured  *  at  Amftcrdam  from  Marfeilles  to  the  river  Elbe, 
•was  taken  in  the  Mediterranean  fea  by  the  Turks,  and  burnt : — the  infured 
having  claimed  from  the  infurers  pavment  of  the  lofs,  they  defended 
themfelves  upon  this  fingle  ground,  that  the  fhip  had  altered  her  voyage,  or 
had  certainly  determined  to  alter  it;  for  that  he  who  altera  his  voyage,  or 
intends  to  go  to  any  other  port  but  that  exprefled  in  the  policy,  has  no  aftion; 
and  the  infurers  proved  the  determination  of  altering  the  voyage  by  the 
conjignment ;  that  the  mafter  had,  at  Marfeilles,  agreed  to  freight  his  fhip 
for  Dunkirk;  that  he  failed  from  Marfeilles  to  Alicant,  and  there  alfo 
freighted  his  fliip  for  Havre  de  Grace ;  and  that  thofe  two  places  not  being 
exprefled  in  the  policy,  here  were,  therefore,  tzvo  new  voyages  meditated 
or  intended,  though  not  perfefted. — 1  he  infured  did  not  deny  this,  but 
faid,  that  the  (liip  was  infured  from  Marfeilles  to  the  river  Elbe,  without 
any  place  excepted ;  and  by  the  law  of  infurance,  the  fhip  could  go  to  or 
touch  at  all  ports  intermediate,  between  the  place  from  which,  and  the  place 
to  which,  the  infurance  was  made  ;  and  flie  muft,  from  Marfeilles  towards 
the  Elbe,  navigate  and  pafs  by  Alicant,  Havre  de  Grace,  and  Dunkirk :  the 
infured  added  that  the  fliip  was  taken  by  the  Turks,  and  burnt  in  the  Medi- 
terranean fea,  and  that  the  fhip  muft  verily  have  failed  through  that  fea 
towards  the  Elbe;  for  as  to  other  cities,  towns,  or  ports,  and  whether  it  was 
lawful  for  her  to  go  to  them,  or  any  of  them,  it  would  indeed  be  a  proper  fubje6t 
of  enquiry,  if  at  or  about  thofe  other  cities,  towns,  or  ports,  the  Ihip  had  fuf- 
fered  the  lofs  in  queftion. — The  infurers  theninfifted,  that  the  alteration  of  the 
voyage  appeared  from  the  determmation  of  the  mind  alone,  nor  Mas  it  material, 
in  what  place  the  fhip  fuffered  the  lofs,  the  fole  determination  or  refolution  of 
altering  the  voyage,  not  the  event  of  it's  being  aBually  altered,  being  what 

ought  to  be  refpefted. Hereupon  the  fenate  was  moved,  that  the  fhip  was 

there  deftroyed  and  burnt,  when  fhe  was  failing  towards,  or  in  the  proper 
coiLrfe  towards  the  Elbe ;  and  verily  the  rifque  or  peril,  which  the  infurers 
took  upon  themfelves,  muft  be  eftimated  or  judged  of  from  the  place  where 

•  This  and  the  two  following  are  the  Dutch  cafes  referred  to  in  the  preceding  cafe  of  the  Jeanie. 

the 


58o  VOYAGE, 

the  lofs  happened ;  for  that  the  naked  determination,  or  bare  refolution,  for 
or  concerning  any  alteration  of  the  voyage,  did,  in  no  refpeft,  hurt  the 
infurers  ;  the  event  of  an  alteration  of  the  voyage  might  pofhbly  have  hurt 
them,  but  it  would  be  in  vain  to  complain  or  enquire  about  a  matter,  which 
plainly  was  not  effe&,ed,  or  carried  into  execution. — Judgment  was  given  for 
the  infured,  the  28th  of  February  1708. — Bynkerjlioek,  quaji.  jur.  priv, 
4,32.   ed.  1767. 

7.  Insurance  was  made  at  Amfterdam,  upon  a  fliip,  on  a  voyage  from 
Lijhon  to  Hamburgh :  the  fliip  was  loft  near  the  coaft  of  England  ;  and  the 
infurers  refufed  to  pay  the  lofs  ;  becaufe,  from  the  bills  of  lading,  it  appeared 
that  fhe  was  dejlined  not  for  Hamburgh,  but  for  Tonningcn  in  Holllein : — the 
infured  anfwered,  that  though  the  bills  of  lading  indeed  bore  Tonningen,  yet 
this  was  merely  to  proteft  the  veffel  from  French  privateers,  Tonningen 
being  a  neutral  port,  and  that  in  faft  Hamburgh  was  the  real  port  of  the 
fhip's  deftination: — but  further,  and  independent  of  this,  the  infured  denied, 
that  the  voyage  was  altered,  fince  the  fliip  was  loft  between  thofc  places  which 
were  exprejjed  in  the  policy ;  to  wit,  between  Lift)on  and  Hamburgh  :  that  an 
alteration  of  the  voyage  was  to  be  underftood  in  the  cafe  only  of  fome 
prejudice  accruing  to  the  infurer,  fuch  as  that  he  run  a  greater  rifque  than  he 
undertook  by  the  policy  on  the  voyage  infured  :  it  was  lawful  to  ftipulate, 
that  not  the  whole  voyage,  but  even  fome  part  of  it  fhould  be  within  the 
policy  or  rifque  of  the  infurer ;  and  it  is  therefore  nothing  to  the  purpofe, 
that  the  fliip  was  truly  deftined  for  Tonningen,  and  the  infured  had  fo  defired 
it  to  be,  fince  the  fliip  was  not  loft  between  Hamburgh  and  Tonningen,  but 
between  Lifl^on  and  Hamburgh. — Judgment  was  given  for  the  infured,  April 
the  12th  1714. — Ibid.  436. 

8.  A  SHIP  infured  from  Aniflerdam  to  London,  having  been  taken  in  her 
courfe,  by  a  French  privateer,  was  ranfomed  for  a  certain  fum ;  and  having 
afterwards  proceeded  on  her  voyage  to  England,  and  arrived  at  the  Nore,  at 
the  mouth  of  the  Thames,  from  thence,  inftead  of  going  to  London,  altered 
her  courfe,  and  failed  to  Lynn  Regis,  in  the  county  of  Norfolk ;  which  from 
her  bills  of  lading  appeared  to  have  been  from  the  beginning  her  port  of 
dejlination. — In  an  a6tion  brought  by  the  infured  againft  tlic  inlurers  for  the 
ranfom  money,  the  infurers  refufed  to  pay,  becaufe  the  fliip  never  came  to 
London,  which  however  was  the  place  exprefled  in  the  policy  : — the  infurers, 
in  order  to  be  difcharged,  urged  principally  that  here  was  not  merely  an 
intention  of  altering  the  voyage,  but  it  was  in  Jatt  altered  ;  for  that  the  faid 
fliip  did  not  fail  for  London,  as  by  the  agreement  it  ought  to  have  done,  but 
for  Lynn  Regis;  which  place  was  not  mentioned  in  the  policy,  and  not  being 
mentioned,  the  contraft  was  void. — In  anfwer  to  this,  the  infured  maintained, 
that  it  was  not  requifite  to  exprefs  the  place  or  port  of  the  fliip's  unloading 
or  difcharging,  but  the  place  or  point,  to  which  the  fliip  fliall  or  may  navigate 
or  arrive  at,  it  being  fufiicient  if  it  appears  hovo  Jar,  or  to  what  point,  the 
infurer  undertook  the  rifque  ;  the  whole  vovage,  and  part  of  the  voyage  might 

be 


VOYAGE.  58i 

be  agreed  for,  and  fo  the  fliip  configned  from  the  mediterranean  to  Amfterdam, 
might  be  infured  to  Amfterdam,  or  to  Cadiz  ;  and  if  to  Cadiz,  it  mufl  be  at 
the  rifque  of  the  infurer,  to  the  height  of,  or  as  high,  or  as  far  as  Cadiz ; 
nor  could  he  demand  that  the  fhip  (hould  neceffanly  enter  the  very  port  of 
Cadiz,  akhough  (he  might  if  flie  would :  if  therefore  the  fliip  is  lofl:  before 
her  arrival  at  Cadiz,  the  lofs  is  at  the  rifque  of  the  infurer ;  and  fo  in  the  cafe 
that  has  happened,  the  fhip  could  not  fail  to  Lynn  Regis  without  fnll  failing 
to  the  mouth  of  the  Thames  ;  wherefore,  fofar  (he  failed  at  the  rifque  of  the 
infurer,  and  before  Ihe  arrived  there  was  taken  by  enemies  and  ranfomed : — 
the  fhip  might  have  failed  to  London,  according  to  the  policy  of  infurance  ; 
but  he  who  undertook  a  rifque  as  far  as  London,  has  verily  undertook  the 
rifque  as  far  as  the  mouth  of  the  Thames ;  and  though  the  (hip  did  not  fail 
from  thence  to  London,  it  is  obvious,  that  the  infurer  did  not  thereby  run  a 
greater,  but  really  a  lefs  rifque;  and  therefore  it  is  of  no  confequence, 
available  to  him,  that  the  fliip  did  not  fail  to  London : — if  the  flnp  had  been 
taken  at  the  mouth  of  the  Thames,  failing  to  Lynn  Rep^is,  undoubtedly  no 
action,  in  fuch  cafe,  would  lie  againft  the  infurer ;  but  [xichfiLrthej-  defiination 
to  Lynn  Regis,  does  not  increafe  his  rifque. — Judgment  was  given  for  the 
infured,  June  the  27th,  1720. — Ibid.  445. 

9.  When  a  voyage  is.  fhortened,   the  rifque   ends,  and   the   premium  is 

gained. — Ordin.  of  France. — Ordin.  of  Llambi — Ordin.  of  Stockh. Which 

is  jud;  becaufe  it  is  folely  by  the  aft  of  the  infured,  or  their  agents;  who 
may  leffen,  but  cannot  increafe  the  rifques  of  the  infurers  : — Guidon,  c.  9. 
art.  12. — If  then  the  alfured  lengthens  the  voyage,  by  fending  the  fliip  to  a 
place  more  diftant  than  that  mentioned  in  the  policy,  although  in  the  fame 
courfe  ;  it  is  entirely  right  that  the  infurer  fhould  gain  the  premium,  and  be 
difcharged  from  the  rifques,  as  foon  as  the  (hip  arrives  at  the  Aa^A/lA  of  the 
place  mentioned  in  the  policy. — 2  Valins  Comm.  77,  87. 

10.  When  it  can  be  proved  againft  any  one,  whether  by  charter-party, 
bills  of  lading,  freightment,  or  otherwife,  or  even  by  lawful  witneffes,  that  he 
has  altered  the  voyage  infured  upon,  and  which  it  was  declared  in  the 
affurance  he  was  intended  for,  then  he  (hall  have  no  power  to  demand  any 
thing  in  refpeft  to  fuch  affurance,  by  reafon  of  the  faid  alteration. — Ordin. 
of  Antzo. 

11.  See  Africa,  Alteration  of  Policy  Voyage  or  Rifque,  Barratry,  Bottomry, 
Cadiz,  Commencement  of  Voyage  or  Rifque,  Confirutiion,  ContraB,  Convoy, 
Deviation,  End  of  Voyage  or  Rifque,  Greenland,  Intendment,  Privateer,  Return, 
Rifque,  Seafon,  Time,  Touching,  Ufage,  Warranty, 


tk^(i1> 


7  C  WAGER. 


w. 


WAGER. 

1.  r  I  ^HE  difference  between  an  infurance  and  a  wager  confifls  in  this; 
I  that  an  infurance  is  made  between  the  infured,  or  the  merchant  to 
whom  the  thing  infured  belongs,  and  a  ftranger,  who,  having  no 
interefl  in  the  property  and  fafety  of  the  thing,  takes  upon  him,  neverthelefs, 
the  rifque  of  it ;  whereas  a  wager  is  made  between  two  flrangers,  neither  of 
whom  have  any  interefl  in  the  thing. — Dumoulin,  de  UJuris,  n.  93  &  97. 

2.  Case. — A  verdift  having  been  found  for  the  plaintiff",  Mr.  Lee  moved 
on  behalf  of  the  defendant,  for  a  new  trial : — the  caufe  was  tried  before 
Lord  Mansfield:  it  was  a  contra6l  made  at  Newmarket:  the  wager  was 
originally  propofed  between  young  Mr.  Pigot,  the  prefent  defendant,  and 
young  Mr.  Codrington,  to  run  their  fathers  (to  ufe  the  phrafe  of  that  place) 
each  againft  the  other  :  Sir  William  Codrington,  the  father  of  Mr.  Codrington, 
was  then  a  little  turned  of  fifty :  Mr.  Pigot's  father  was  upwards  of  feventy. 
Lord  OfTory  computed  the  chances,  according  to  the  above-mentioned  ages 
of  their  refpe6live  fathers.  Mr.  Codrington  thought  the  computation  was 
made  too  much  in  his  disfavour ;  whereupon  Lord  March  agreed  to  ftand 
in  Mr.  Codrington's  place ;  and  reciprocal  notes  were  accordingly  given 
between  the  earl  and  Mr.  Pigot. — Mr.  Pigot's  note  run  thus  ;  "  I  promife  to 
pay  to  the  Earl  of  March  500  guineas,  if  my  father  dies  before  Sir  William 
Codrington :  William  Pigot." — The  earl's  was,  "  I  promife  to  pay  to  Mr. 
Pio-ot  1,600  guineas,  in  cafe  Sir  William  Codrington  does  not  furvive 
Mr.  Pigot's  Father  :  March." — No  mention  was  at  all  made,  at  the  time  of 
this  tranfaclion,  about  their  fathers  being  then  dead  or  alive  ;  but  the  faft 
was,  that  Mr.  Pigot's  father  was  then  aftually  dead  :  he  died  in  Shroplliire, 
150  miles  from  London,  at  two  o'clock  in  the  morning  of  the  fame  day  on 
which  this  bet  was  made  at  Newmarket  after  dinner :  however,  this  faft  was 
not,  at  that  time,  at  all  known  to  any  of  the  parties ;  nor  was  there  any 
reafon  for  fufpefting  that  Mr.  Pigots  father  was  then  dead  :  there  was  no 
objection  made  at  the  trial  againft  going  into  parol  evidence.  Lord  Mans- 
field left  the  matter  to  the  jury ;    who  found  a  verdiiTl  for  the  plaintiff,  with 

525I.  damages. The  objeftion  was,  that  the  contrail  was  void  :   it  was 

without 


WAGER.  583 

without  any  confideration ;  for,  there  was  no  poffibility  of  the  defendant's 
winning  (his  father  being  then  atlually  dead) ;  and  therefore  he  ought  not 
to  lofe  :  it  was  a  contract  in  fuiuro,  manifeflly  made  upon  the  fiippofitioa 
of  a  then  future  contingency  ;  the  meaning  cannot  be  doubted  :  and  the 
words  fufficiently  exprefs  that  meaning:  "  if  my  father  dies  before  Sir 
William  Codrington"  is  equivalent  to  faying,  "  if  my  hther  Jliall  die  before 
Sir  William  Codrington  •/'  but  his  father  was  dead  before  he  entered  into  this 
contraft : — Mr.  Lee  faid,  it  was  given  in  evidence,  and  is  certainly  true,  that 
their  fathers  being  dead  or  being  alive  made  no  difference  in  the  proportion 
of  the  value  of  the  chance  :  and  he  obferved  that,  in  the  cafe  of  an  infurance 
upon  a  {hip,  if  the  words  "  lofl  or  not  loft"  be  not  inferted,  and  the  fatl 
fhould  happen  to  be  that  the  fhip  was  actually  loft  at  the  time  when  the 
infurance  was  made,  the  infurance  is  void. — Rule  was  granted  to  ftiew  caufe 

why  there  fliould  not  be  a  new  trial. ,And  now  Mr.  Wallace,  Mr.  Dunning, 

and  Mr.  Mansfield,  on  behalf  of  the  plaintiff',  fliewed  caufe  againft  a  new 
trial  being  granted  :  they  faid  that  the  infertion  of  the  words  "  lojl  or  not 
loji"  was  peculiar  to  Engliffi  policies  ;  it  is  not  inferted  in  the  policies  of 
other  nations  ;  Roccius,  20^.  not.  175:  and  the  reafon  there  given  (at  the 
end  of  it)  namely  "  that  the  fa61  being  unknown  will  not  prejudice  the 
infurance,"  applies  to  the  prefent  cafe  : — fuppofing  it  to  have  related  to  the 
death  of  perfons  in  India,  or  the  fafety  of  the  Aurora  (frigat)  can  any  one 
imagine  that  the  infurance  would  be  void,  becaufe  the  event  had  happened 
antecedent  to  the  making  of  the  contraft  ?  the  event  of  either  of  the  two 
fathers  being  then  already  dead  did  not  occur  to  the  parties  :  if  it  had,  it 
would  not  have  varied  the  bet :  the  two  reciprocal  notes  undoubtedly  mean 

one  and  the   fame  event :    retrofpecl  is  included,  as   well  as  futurity. 

Mr.  Lee  and  Mr.  Bolton,  for  the  defendant,  replied,  that  by  the  law  of 
England  it  is  neceff'ary  to  infert  the  words  "  loft  or  not  loft,"  in  ftiip  policies : 
otherwife  the  infurance  is  void,  if  the  fliip  was  then  already  loft  :  and  this, 
they  faid,  was  exprefly  laid  down  by  Molloy :  the  bet  went  upon  the  idea 
that  both  fathers  were  then  living  ;  and  fo  the  evidence  agreed  :  the  bet  was 
clearly  future  :  if  a  bet  be  laid  upon  two  horfes,  and  one  is  dead  at  the  time  ; 

it  is  no  bet. Lord  Mansfield  :  if  the  prefent  cafe  had  ftood  upon  written 

evidence  only,  it  had  been  matter  of  law  :  but  there  was  no  objection  made, 
at  the  trial,  againft  going  into  parol  evidence  : — the  qucftion  is,  "  What  the 
parties  really  meant  ?"  the  material  contingency  was,  "  Which  of  thefe  two 
young  heirs  fliould  come  to  his  father's  eftate  firft  ?"  it  was  not  known  that 
the  father  of  either  of  them  was  then  dead :  their  lives,  their  healths,  were 
neither  warranted  nor  excepted  :  it  was  equal  to  both  of  them,  whether  one 
of  their  fathers  ffiould  be  then  fick  or  dead  :  all  the  circumftances  ffiew,  that 
if  it  had  been  then  thought  of,  it  would  not  have  made  any  difference  in  the 
bet ;  and  there  was  no  reafon  to  prefume  that  they  would  have  excepted  it :  the 
intention  was,  that  he  who  came  firft  to  his  eftate  ffiould  pay  this  fum  of  money 
to  the  other  who  ftood  in  need  of  it :  the  event  that  had  happened,  was  in  the 
contemplation  of  neither  party  :  both  notes  are  fo  penned  as  to  be  applied  to 
what  was  to  happen :    but  the  nature  of  fuch  a  contrad,   and  the  manifeft 

intention 


584  WAGER. 

intention  of  the  parties,  fupport  the  verdift  of  the  jury  (to  whom  it  was  left 
without  obje6i:ion)  "  that  he  who  fucceeded  to  his  eftate  firfl,  by  the  death  of 
his  father,  fliould  pay  to  the  other  ;"  without  any  diftinftion  whether  the  event 

had  or  had  not,  at  that  time,  aftually  happened. Mr.  Juftice  Afton  :    it  was 

ori<nnally  intended  to  be  a  bet  between  two  young  heirs  apparent;  and  the 
material  point  to  be  fettled  was,  to  fix  the  difference  of  the  chances  of  the  fur- 
vivorlhip  of  their  fathers  :  the  mere  furvivorjliip  was  the  thing  intended  to  be 
betted  upon  :  the  jury  v/crc  the  proper  judges  of  the  intention  of  the  bet ;  and 
they  have  determined  what  that  intention  was : — if  it  had  flood  fingly  upon 
the  defendant's  note,  I  fliould  have  thought  it  not  to  be  a  good  promife 
at  the  time  of  giving  it ;  but  taking  the  evidence  and  all  the  circumftances 
together,  it  was  proper  to  be  left  to  the  jury  :  and  the  jury  taking  the 
circumflances  into  confideration  (and  it  was  proper  to  take  them  into  con- 
fideration)   have  determined  it.     I   fee  no  ground   for  granting  a  new  trial. 

-The  other  t\\^o  judges  concurred;   and  the  court  unanimoufly  difcharged 

the  rule  for  a  new  trial. — 5  Burr.  2,804. — Trin.   11  Geo.  3. — Earl  of  March 

V.  Pifrot. 

o 

3.  Case. — In  the  courfe  of  the  year  1770,  and  during  fix  or  feven  years 
after,  divers  gaming  policies  of  infurance  were  made  and  underwrote,  con- 
cerning the  fcx  of  a  perfori  then  refident  in  England,  and  celebrated  throughout 
Europe  under  the  title  of  Le  Chevalier  d'  Eon  :  the  infurers  thereby  agreed 
to  pay  a  lofs  "  in  cafe  the  perfon  fo  called  fhould  in  reality  be  a  woman :" — in 
feveral  of  fhe  policies  there  was  a  limitation  of  time  for  making  proof  of  the 
faft ;  viz.  in  fome,  fevcn  years,  fome  more,  and  fome  lefs  ;  but  in  the 
greater  part  of  them  there  was  no  limitation  expreffed  :  the  premiums  of  the 
different  infurances  and  reinfurances  which  were  fuppofed  to  have  amounted  in 
the  whole  to  upwards  of  6o,oool.  ran  from  15  guineas  to  60  guineas  per  cent, 
according  to  the  reports  which  were  from  time  to  time  current,  refpefling  the 
fubjefcl  of  thofe  infurances,  and  the  fpeculative  humour  of  the  parties:  feveral 
even  of  the  high  premiums  were  paid  immediately  in  cafli ;  between  the  time 
of  the  firfl.  and  the  laft  of  thofe  infurances  fundry  of  the  underwriters  failed, 
efpecially  in  the  year  1772,  when  many  bankruptcies  happened  in  England, 
m  confequence  of  the  very  great  one  of  Alexander  Fordyce,  banker. — Many 
perfons  conjeftured  that  the  chevalier  was  the  contriver,  or  promoter  of  thofe 
wagers,  or  connived  at  them  for  interefled  purpofes ;  but  the  chevalier 
publiflied  exculpatory  declarations  upon  oath  to  the  contrary. — At  length  the 
mvftery  of  the  /'ex  was  difcovered  to  the  publick  :  a  quarrel,  and  a  lawfuit  in 
confequence,  happened  between  the  chevalier  and  a  Monfieur  De  M. ; 
wherein  the  latter  fwore  the  former  was  a  female  :  in  confequence  of  which 
aftions  were  commenced  on  fome  of  the  aforefaid  policies,  and  brought 
onto  be  tried  before  Lord  Mansfield  at  Guildhall ;  and  upon  the  evidence  of 
the  faid  De  M.  as  alfo  of  a  French  dodlor,  a  furgeon,  &c.  who  all  proved 
the  female  fex  of  the  chevalier,  verdi6ls  were  given  againft^  fome  of  the 
infurers,  as  well  as  againft  the  defendant  in  the  prefent  cafe  :  who,  however, 
in  the  fubfequent  term,    moved  for  arrefl,  of  judgment,   on  thefe  grounds ; 

viz. 


WAGER.  ^85 

viz.  1.  that  a  trial  of  fuch  a  caufe,  and  an  examination  of  witnefTes  to  fuch 
fatts,  were  indecent,  contra  bonos  mores,-  and  therefore  not  meriting  the 
countenance  of  a  court  of  law :  2.  that  the  charaftcr,  peace  of  mind,  &c. 
of  a  third  perfon  were  thereby  affecled, — To  this  it  was  objefted,  1.  that  the 
defendant,  as  particeps  criminis,  urged  thofe  reafons  Avith  an  ill  grace :  2. 
that  juftice  ought  to  be  done  to  the  parties,  in  the  prefent,  as  in  former  cafes 
of  wagers :  Earl  of  March  v.  Pigot :  3.  that  there  is  often  a  necelhty  to  enter 
into  fuch  examinations   in  open   court ;    as  in  the   cafe  of  a   lady  who  was 

arrefted  as  a  feme  covert,  though  all  the  parties  knew  (he  was  a  fpinfter. 

Lord  Mansfield  dire6led  an  arreft  of  judgment;  and  faid,  that  the  chevalier 
might  have  complained  to  the  court,  that  "  this  was  a  fhameful  and  indecent 
trial,  a  wager  of  two  gamblers  at  my  expence  ;"  and  the  trial  would  have 
been  quafhcd  :  the  chevalier  had  been  captain  of  dragoons,  knight  of  the 
order  of  St.  Louis,  fecretary  of  embaffy,  and  minifter  plenipotentiary  ;  and 
whether  man  or  woman,  had  done  fmgular  fervice  to  the  country  (France) 
by  which  he  had  been  employed  : — fliall  people  lay  wagers  to  affeft  third 
perfons  with  penal  punifhments  ?  (hall  a  wager  be  laid  that  fuch  a  woman  is 
an  adultcrefs,  got  with  child,  and  have  a  baftard  by  one  of  the  gamblers? 
and  all  their  friends,  relations,  phyficians,  nurfes,  and  confidants,  be  haraffed 
into  a  court  of  juRice,  to  expofe  and  vilify  a  lady  at  the  pleafure  of  a  couple 
of  gamblers  ?  that  fuch  a  perfon  is  man  or  woman,  and  to  gratify  a  couple 
of  gamblers  ?  a  court  of  juftice  fliall  folemnly  fit,  and  perhaps  divell  fuch 
third  perfon  of  a  confiderable  fortune  by  fuch  inquifition  ?  fliall  I  lay  a  wager 
that  fuch  or  fuch  a  lady  has  fuch  or  fuch  a  mark  on  her  body,  or  that  flie  has 
the  foul  difeafe  ?  and  fliall  the  necelfary  evidence  be  dragged  into  court  to 
eftablifli  a  fact,  for  the  fliocking  purpofe  of  pleafing  thofe  who  can  fport  with 
the  eafe,  peace,  and  happinefs  of  fociety  ? — After  feveral  fimilar  arguments 
his  lordfhip  feverely  reprobated  the  whole  proceedings. — At  Weftminller- 
Hall,  Hil.  1778. — Da  Cofla  v.  Jones. 

4.  All  infurances  on  expe£led  ^flm,  wagers,  or  fuch  inventions,  future 
freight-moniQ'i,  feamen's  wages,  and  men's  Lives,  are  univerfally  forbid,  and 

declared  of  no  force;  the  feamen  are  however  permitted  to  infure  what 
goods  or  effects  they  may  have,  nor  is  any  one  going  on  a  hazardous  voyage 
prohibited  from  infuring  by  a  policy  lawfully  executed,  a  certain  fum  of 
money  for  his  ranfom,  in  cafe  of  being  taken. — Ordin.  of  Koningjh. 

5.  No  infurance  fliall  be  made  on  wagers  of  voyages,  and  other  like 
inventions ;  and  no  judgment  fliall  be  given  on  them. — Ordin.  of  Amjl. 

6.  Remarks. — In  all  commercial  countries,  every  fpecies  of  gaming 
ought  to  be  difcouraged  to  the  utmoft ;  and  efpecially  that  which  may  be 
pradifed  under  the  form  of  infurance  ;  which,  from  the  great  variety  of  it's 
objeas  and  circumflances,  affords  a  large  field  for  the  produdion  of  thofe 
fruits  of  idlencfs  and  fraud,  called  fpcculations,  or  wager  policies ;  upon 
which  I  have  already  palled  fomc  ftriQures  in  p.  ^^  8c  56  of  the  Prelim. 

7  D  Difcourfe, 


586  .WAGE  R. 

Difcourfe. By  the  ordinances  of  almoft  every  foreign  maritime  ftate,  the 

original  intention  of  infurance,  i.  e,  dividing  the  rifque  amongft  the  infurers 
and  infured,  is  carefully  attended  to,  not  only  by  rendering  the  policy  null 
and  void  for  fuch  fum  as  is  infured  beyond  the  amount  or  value  of  the 
intereji  of  the  proprietor  in  the  thing  infured  ;  but  alfo  in  fome  places  obliging 
him  to  run  the  rifque,  himfelf,  of  a  tenth,  an  eighth,  and  in  others  ^  fifth  part, 
particularly  of  the  Jliip  :  and  by  the  Ordin.  of  France,  1681,  art.  55.  '•'  if  the 
infured  fues  for  the  payment  of  the  fum  infured,  above  the  value  of  his  effefts 
or  intereft,  he  fhall  be  "  exemplarily  puniJJied  ;" — alfo  by  art.  22.  "  it  is  forbid 
to  make  any  infurance  on  goods  or  effects,  above  their  value,  under  penalty 
of  fuch  infurance  being  invalid,  and  confifcation  of  the  goods  :" — and  by  the 
Ordin.  of  Koningfi).  "  if  any  one,  from  an  eager  defire  of  gain,  fliall  run  the 
rifque  of  infuring  (hip  or  goods  to  a  greater  fum  than  their  equitable  value, 
he  fliall  h^fevercly  punifiied  according  to  the  circumftances,  the  infurance  (hall 
be  void,  and  the  premium  fall  to  the  infurer :" — other  ordinances  might  be 

quoted  to  the  like  efFeft. -How  different  is  all  this  from  the  praftice  in 

Eno-land ! — it  is  true,  that  by  the  ftat.  19  Geo.  2.  c.  37.  "  all  infurances  on 
flaps  or  goods,  intereft  or  no  interefl,  or  without  further  proof  of  intereft 
than  the  policy,  are  declared  void,  except  on  private  fhips  of  war  for  account 
of  the  owners ;  and  on  effetls  from  any  ports  in  Europe  or  America,  in  the 
poffeffion  of  the  crowns  of  Spain  and  Portugal;"  and  the  preamble  of  this 
aft  obferves,  "  that  the  making  infurances,  interefl:  or  no  interefl:,  &c.  had 
been  found  by  experience  to  be  produ6live  of  many  pernicious  and  frau- 
dulent pradiccs,  and  a  mifchievous  kind  of  gaming  or  wagering,  whereby 
the  infl:itution  and  laudable  defign  of  infurance  had  been  perverted :" — alfo 
by  ftat.  14  Geo.  3*.  "  no  infurance  fliall  be  made  on  the  life  of  any  perfon,  or 
on  any  other  event  whatfoever,  wherein  the  perfon  for  whofe  benefit  the 
policy  is  made  fliall  have  no  intereft,  or  by  way  of  gaming  or  wagering :" 

but  then,  the  conflruElion  that  has  been  made  of  thefe  ftatutes  in  our 

courts  is  fuch  that,  although  the  policy  is  void  where  the  infured  liath  no 
intereft,  yet  an  extenfive  field  of  deceit  and  impofition  is  ftill  left  open, 
where  he  can  make  out  fame  intereft : — for,  Lord  Mansfield  faid,  "  it  is 
fettled,  that  upon  a  valued  policy,  the  merchant  need  only  prove  fome 
intereft  to  take  it  out  of  the  ftat.  igGeo.  2. ;  but  if  it  fliould  come  out  that 
the  valuation  was  merely  as  a  cover  to  a  wager,  or  that  a  man  had  infured 
2,oool.  and  had  intereft  on  board  to  the  value  of  a  cable  only,  it  would  be 
confidered  as  an  evafion,  by  which  the  aft  of  parliament  may  be  defeated :" 
— and  yet  his  lordfhip  faid,  at  the  fame  time,  that  "  if  the  intereft  be 
over-valued,  it  muft  be  done  with  a  bad  view  of  a  fraudulent  lofs  :" — Lems 
V.  Rucker,  2  Burr.  1167. — Neverthelefs,  large  over-valuations  on  goods, 
and  efpecially  on  bad  fiiips,  are  praftifed  every  day,  grounded  on  the  firft 
part  of  his  lordfliip's  doftrine  ;  and  as  to  the  latter  part,  how  does  it  appear 
from  thence,  what  degree  of  over-valuation  would  be  deemed  fraudulent,  and 

fuch  an  evafion  of  the  aft  as  to  annul  the  infurance  ? Any  over-valuation 

of  an  aftual  intereft  is  unquertionably  a  fpeculating,  or  wagering,  for  fo  much 
as  exceeds  the  true  amount  in  rifque  ;    and  is  often  more  dangerous  to  the 

infurer 


WAGES.  587 

infurer  than  a  mere  wager  where  there  is  no  intereft,  inafmuch  as  the  infured 
has  commonly  the  direftion  of  the  voyage  or  rifque,  or  is   in  the  private 

knowledge  of  the  particular  circumftances  of  it. In  this  light  of  gaming, 

or  wagering,  all  infurances  beyond  the  real  value  of  the  interefl,  have  always 
been  formerly  confidered  by  the  general  maritime  law,  and  are  now  fo 
confidered  by  the  laws  of  other  countries  ;  and  more  efpecially  "  all  infurances 
on  imaginary,  uncertain,  or  expefted  profits  ;" — which  therefore  are  prohibited 
by  the    Ordin.   of  Avi/i.   Antw.   Copenh.    France,   Rott.    &c. ;    as    are   alfo 

"  infurances  on  freight"   by  the  Ordin.  of  France,   and    Koningfb. In 

fliort,  the  defign  and  nature  of  infurance  being  folely  that  the  infured  may 
be  indemnifed  from  real  lofs,  not  that  he  may  reap  gain  thereby,  no  policy 
ought  to  be  fupported  by  a  court  of  judicature,  beyond  the  true  value  of 
the  interefl:  aftually  in  rifque  ;  and  as  a  further  preventive  and  check  to 
fraud  and  impofition  (efpecially  with  refpeft  to  bad  and  infuflRcient  yZiz/'i^ 
the  infured  ought  to  be  obliged,  by  law,  to  run  fome  proportion  of  the 
rifque  himfelf. 

7.  See  Bargain,  Bottomry,  Capture,  Commodity,  Contrail,  Court  of  Policies 
of  Affurance,  Double- Infurance,  Event,  Freight,  Infurance,  Infured,  Interefl, 
Interefl  or  no  Interefl,  Lives,  Lofl  or  not  Lojl,  Market,  Privateer,  Profit^ 
Ranfom,  Rcfpondcntia,  Ship,  Stocks,  Valuation,  Wages. 


WAGE  S. 

1.  A  LMOST  all  ordinances  forbid  the  infuring  feamen's  wages :  and  the 
-^~^  reafon  is,  that  their  own  interefl:  may  lead  them  to  do  all  they  can 
for  the  fliip's  prefervation. — Sailors  hired  at  London  for  a  voyage  to  the 
Streights,  are  commonly  articled  to  perform  it  out  and  home :  by  this  cove- 
nant it  is  fl:ipulated,  that  they  fliall  have  one  or  two  months  pay  advanced  ; 
which  money  fo  advanced,  is  by  cuflom,  and  law,  admitted  to  make  a  part 
of  the  outfet ;  and  may  be  infured  by  the  owners  who  advance  it,  but  by 
nobody  elfe. — It  is  good  policy  in  a  country  like  Great-Britain,  where  fo 
powerful  a  navy,  and  fuch  a  great  number  of  feamen,  mufl  necefl^arily  be 
kept  up,  that  the  failors  fliould  have  an  interefl:  in  coming  back,  and  fpending 
their  earnings  at  home. — What  is  faid  above,  that  no  infurance  can  be  made 
on  feamen's  wages,  mufl:  be  underftood  to  mean,  on  fuch  wages  as  are  not 
due  till  the  voyage  be  entirely  finiflied :  but  if  they  engage  to  go  a  long 
one,  and  covenant  to  have  fome  money  paid  them  abroad  to  lay  out  in  goods 

to  bring  home,  infurance  may  be  made  on  fuch  goods. — 1  Mag.  18. The 

principal  reafon  why  failors  are  not  allowed  to  infure  their  wages  is,  as  1 
imagine,  that  as  owners  are  not  obliged  to  pay  the  mariners  after  lofing  their 
fhip,  thefe  latter  commonly  endeavour  all  they  can  to  fave  her,  when  in 
danger,  in  order  to  fecure  their  pay ;  and  it  is  certain  they  would  not  aft 
with  fo  much  warmth,   on  fuch  occafions,   if  their  wages  were  infured. — 

Ricard's  Negcce  d'  Amfl. 

2.     Masters, 


583  WAGES. 

2.  Masters,  pilots,  Tailors,  warlike  people,  and  all  others  who  navigate 
fliips,  ihall  not  caufe  their  hire,  or  wages,  to  be  infured. — Ordin.  of  Amjl. — 
Antic. — France. — Middleb. — Stockh. — Alfo  Stypmannus,  ad  jus  mar.  par.  4.  c.  7. 

3.  Case. — Executor  of  a  madcr  of  a  fhip  fues  in  the  admiralty  for  wages, 
and  prohibition  was  granted  : — fuit  in  the  admiralty  for  wages,  allowed  to  mari- 
ners, but  never  to  the  mafler. — Salk.  33.  Trin.  12  Will.  3. — Clay  v.  Sudgrove. 

4.  Case. — The  mate  fued  the  mafter  for  his  wages  in  the  admiralty,  and 
Mr.  Raymond  moved  for  a  prohibition,  becaufe  the  mafter  himfelf  could  not 
fue  there,  and  the  mate  was  not  in  nature  of  a  manner,  but  was  to  fucceed  the 
mafter  if  he  died  in  the  voyage :  denied  per  Holt,  C.  J.  for  the  mafter 
contrails  with  the  owners,  but  the  mate  contrafts  with  the  mafter  for  his 
wages,  as  the  reft  of  the  mariners  do. — Salk.  ^S-  Trin.  12  Will.  3. — Bayly 
V.  Grant. 

5.  Case. — Upon  a  prohibition  to  a  fuit  in  the  admiralty  for  mariners 
wages,  it  was  held,  per  Holt,  C.  J.  that  if  a  ftiip  is  loft  before  ftie  arrives  at  any 
port  of  delivery,  the  feamen  lofe  all  their  wages  ;  but  if  (he  is  loft  after  fhe 
comes  to  a  port  of  delivery,  then  they  only  lofe  their  wages  from  the  laft  port  of 
delivery  ;  but  if  they  run  away,  though  after  they  come  to  a  port  of  delivery, 
they  lofe  all  their  wages. — Raym.  639. — 3  Salk.  23.  Hill.  12.  Will.  3. — 
Home  V.  Lewin. 

6.  Case. — If  a  ftiip  be  bound  for  the  Eaft-Indies,  and  from  thence  to 
return  to  England,  and  the  fliip  unlades  at  a  port  in  the  Eaft-Indies,  and  takes 
freight  to  return  to  England,  and  in  her  return  flie  is  taken  by  enemies  ;  the 
raariners  fhall  have  their  M'ages  for  the  voyage  to  the  Eaft-Indies,  and  for 
half  the  time  that  they  ftayed  there  to  unlade,  and  no  more. — Ruled  by  Holt, 
C.  J.   at  Guildhall. — Anonymous. — Raym.  739.   lO  Will.  3. 

7.  Case. — In  an  a6lion  brought  for  mariners  wages  for  a  voyage  from 
Carolina  to  London,  it  appeared,  that  the  plaintiff  ferved  three  or  four 
months,  and  before  the  fliipcame  to  London,  which  was  the  delivering  port, 
he  was  impreffed  into  the  queen's  fervice ;  and  afterwards  the  fhip  arrived  at 
the  delivering  port : — and  ruled  by  Holt,  on  evidence  at  Guildhall,  that  the 
plaintiff  fliould    recover  pro  tanto  as   he  ferved,    the   fliip   coming  fafe   to 

the  delivering  port. Afterwards   in  another  caufe,  the   fittings  after  this 

term  at  Guildhall,  between  Cha7idler  and  Meade,  in  fuch  an  a6tion  it  appeared 
tJiat  the  plaintiff  was  hired  by  the  defendant  at  Carolina  to  ferve  on  board 
the  Jane  Hoop,  whereof  the  defendant  was  mafter  from  Carolina  to  England, 
at  3I.  per  month;  that  he  ferved  two  months,  then  the  fliip  was  taken  by  a 
French  privateer,  and  ranfomed  ;  and  juft  as  flie  came  off  Plymouth,  the 
plaintiff  was  impreffed,  &c.  and  then  the  ftiip  came  fafe  into  the  river  cf 
Thames,  where  fhe  difpofed  of  her  cargo:  and  by  Holt,  the  plaintiff  can 
have  no  wages,  the   fhip  having  been  taken  by  the  enemy  and  ranfomed. — 

Mr. 


WAGES.  589 

Mr.  Raymond  infifted,  that  in  that  cafe  he  fhould  recover  pro  rata,  and  that 
the  ufage  among  merchants  was  To  ;  which  Hok  faid,  if  he  could  prove,  it 
would  do;  but  wanting  proof  of  it,  the  plaintiff'  was  nonfuited. — Raym, 
1211.  Mich.  4  Ann. — Wiggins  v.  Ingletoii. 

8.  Case. — This  was  an  aftion  by  a  failor  for  wages  in  a  voyage  to  New- 
foundland, and  from  thence  to  Spain  or  Portugal,  or  fome  port  in  the 
Mediterranean :  a  verdift  had  been  given  for  the  defendant :  and  the 
judge  (Mr.  Juftice  Gould)  gave  the  plaintiff  leave  to  move  for  a  new  trial, 
without  payment  of  cofls,  upon  a  queftion  which  arofe  at  the  trial ;  viz. — 
"whether  the  failors  in  fuch  voyages  are  entitled  to  their  wages  at 
Nezofoundland,    or  not  till   the  fhip's  arrival  at  the   port  of  delivery  of  the 

filh  ?" The  contraft  was,   "  that  the  w^ages  fhould  be  paid  at  the  port  at 

which  fuch  wages  were  ufually  due  :" — the  faft  was,  "  that  this  fhip  was  taken, 
after  it's  arrival  at  Placentia  in  Newfoundland  ;    and  upon  it's  voyage  from 

Newfoundland  to  it's  port  of  deliver)^-  of  fifh." Lord  Mansfield  :  it  depends 

upon  a  matter  of  faft,  whether  this  cafe  is  within  the  general  rule  of  law:  which 
matter  of  fact  is,  "  where  the  firft  place  or  port  of  delivery  upon  this  voyage 
or  contrafl  is  ? — It  is  a  voyage  from  Barnflaple  to  Portugal  or  Spain,  or 
other  port  in  the  Mediterranean,  taking  in  a  cargo  of  fifh  at  Newfoundland  : 
and  fo  is  the  very  contraft  itfelf,  which  defcribes  it  as  one  Jingle  voyage  ;  which 
is  to  end  either  in  Spain  or  Portugal,  or  fome  port  in  the  Mediterranean,  at 
the  eleftion  of  the  freighter ;    and  the  fliip  was  loft  before  it  arrived  at  it's 

port   of  delivery :    therefore   the  verdift  is  right. Mr.  Juftice   Wilmot 

concurred  :  NexLfoundland  is  not  the  delivering  port,  but  the  loading  port ; 
there  the  cargo  is  to  be  put  on  board,  which  cargo  is  to  produce  the  profit 
of  the  voyage : — this  is  a  contraft  for  a  voyage  from  Barnftaple  to  fome  port 
in  Spain  or  Portugal,   or  fome  port  in  the  Mediterranean,   going  round  by 

Newfoundland. Mr,  Juftice  Yates  concurred  :    'tis  all  one  entire  voyage  : 

the  fifh  is  the  only  lading  of  the  (hip ;  no  matter  where  taken  in ;  and  the 
fhip  was  loft  before  it's  arrival  at  the  port  of  delivery :    as  the  freighter  loft 

his  cargo,   the  mariner  ought  to  lofe  his  wages :    the  verdi6l  is  right. Mr. 

Juftice  Afton  declared  himfelf  to  be  of  the  fame  opinion. The  poftea  was 

ordered  to  be  delivered  to  the  defendant. — 3  Burr.  1844.  Hil.  6  Geo.  3. — 
Hernaman  v.  Bozoden. 

9.  By  Stat.  8  Geo.  1.  c.  24.  f.  7. — (made  perpetual  by  ftat.  2  Geo.  2.  c.  28.) 
alfo  by  ftat.  12  Geo.  2.  c.  30.  f.  12. — No  mafter  or  owner  of  any  merchant 
fhip  (hall  pay  to  any  feaman  beyond  the  feas  any  money  or  effc6ls  on  account 
of  wages,  exceeding  one  moiety  of  the  wages  due  at  the  time  of  fuch  payment, 
till  fuch  fhip  fhall  return  to  Great-Britain,  Ireland,  or  the  plantations,  or  to 
fome  other  of  his  majefty's  dominions  whereto  they  belong,  on  forfeiture  of 
double  the  money  fo  paid,  to  be  recovered  in  the  high  court  of  admiralty 
by  any  perfon  who  fhall  firft  inform  for  the  fame. 


7  E  10.    In 


590  WAGES. 

10.  In  cafes  where  the  matter  is  obliged  to  pay  the  failors'  viftualling 
and  wages  for  the  purpofe  of  navigating  the  (hip,  however  the  voyage  may 
be  prolonged  (as  by  performing  ordinary  quarantine)  fuch  wages,  &c.  ought 
not  to  be  brought  into  an  average ;  but  in  cafes  of  capture,  detention  by 
foreign  powers,  and  the  like,  when  the  continued  employment  of  the  feamen 
n  with  the  fole  view  of  being  enabled  to  profecute  the  voyage  immediately 
on  the  fliip's  being  cleared,  their  wages  ought  to  be  allowed  in  a  general 
average. — Langenbeck,  in  his  annotations,  enlarges  the  diflinftion,  by  obferving 
that  when  a  (hip  is  accidentally  furprifed  and  frozen  up  at  Peterfburg,  failors* 
v/ages  and  viftualling  during  the  time  fhe  is  frozen  up,  are  not  to  be  made 
good  by  a  general  average ;  but  are  to  be  borne  by  the  fliip  alone. — 
1  Mag.  6j. 

11.  If  a  fhip  is  taken  by  force  and  carried  into  fome  port,  and  the  crew 
remains  on  board  to  take  care  of,  and  reclaim  her  ;  not  only  the  charges  of 
fuch  reclaiming  Ihall  be  brought  into  an  average,  but  the  wages  and  expences 
of  the  (liip's  company  during  her  arrejl,  and  from  the  time  of  her  capture 
and  being  difturbed  in  her  voyage  : — but  the  failors'  wages,  &c.  of  a  fliip 
detained  in  port  by  order  of  itate,  (hall  not  be  brought  into  an  average,  and 
the  reafon  alhgned  for  it  is,  that  in  the  preceding  cafe,  the  crew  remained 
aboard  to  take  care  of  the  veffel,  whilft  they  were  endeavouring  to  reclaim 
her,  and  thefe  charges  were  occafioned  with  the  /ble  view  of  preferving  the 
fhip  and  cargo  for  their  proprietors  ;  but  in  this  latter  cafe,  there  was  no 
room  for  fuch  a  pretence,  as  the  embargoing  fovereign  would  not  have  either 
fhip  or  cargo,  but  only  hinder  their  departure  for  fome  political  reafons, 
wherefore  it  could  not  be  faid  that  the  fhip's  company  remained  on  board  to 
prevent  an  entire  lofs ;  the  only  motives  to  be  offered  for  an  average. — 
^^erzver,  on  Marine  Lazus. 

12.  It  feems  that  both  reafon  and  juftice  require  that  the  expence 
and  wages  of  a  fhip's  company,  detained  in  port  by  a  prince's  order, 
fhould  be  brought  into  a  general  average  ;  for  if,  on  one  fide,  the  mer- 
chants who  have  loaded  her  are  confiderable  fufferers  by  the  delay,  in 
the  arrival  of  their  goods  at  the  deftined  ports,  the  owners  of  the  fliip  are  not 
lefs  fo,  more  efpecially  if  the  crew  is  large,  and  the  detention  long ;  and  tliofe 
who  drew  up  the  ordinance  of  Lewis  XIV.  very  well  perceived  in  part,  that 
to  oblige  the  owners  of  a  veffel  fo  detained,  to  fupport  the  whole  expence, 
would  be  a  great  hardfliip  and  injuftice,  as  the  yth  article  of  the  faid 
ordinance  (under  the  title  of  averages)  exprelfes  ;  (vide  infra) — from  whence, 
I  think  it  ought  to  be  concluded,  that  although  a  fhip  freighted  by  the  month 
or  voyage  is  only  mentioned  in  the  foregoing,  yet  when  the  proprietors  of 
a  veffel  hire  her  creiv  by  the  month,  they  have  a  right  to  bring  the  expence 
and  wages  of  their  failors  into  an  average,  for  the  whole  time  that  the  fliip 
fhall  be  detained ;  though,  on  the  contrar)^  they  cannot  juflly  pretend  to 
bring  the  expence  of  the  mariners  into  an  average,  when  they  are  hired 
for  the  voyage,    as  the  expence  only  is  always  the  fame,    whether  they  be 

hired 


WAGES.  591 

hired  by  the  month  or  voyage  ;  and  being  occafioned  by  the  will  of  the 
fovereign  who  laid  the  embargo,  I  do  not  fee  that  there  ought  to  be  any 
diflin6lion,  unlefs  there  were  fome  goods  aboard,  which  were  the  caufe  of  her 
arreft ;  for  in  this  cafe  it  would  be  reafonable,  that  the  faid  merchandifes 
{hould  pay  the  whole  expence, — Ricard's  Negoce  d'AviJl. 

13.  The  maintenance  and  pay  of  feamen  in  a  fhip  flopped  by  a  fovereign 
power,  fliall  be  reputed  grofs  average,  if  the  fhip  be  hired  by  the  vionth :  if 
by  the  voyage,  they  (hall  be  borne  by  the  fliip  alone,  as  funple  average. — 
Ordin.  of  France. 

14.  The  above  article  (being  the  7th  of  title,  avaries)  in  the  French 
ordinance,  feems  to  want  explanation: — I  have  already  (feci.  12.)  given 
Ricard's  remark  upon  it. — Mr.  Magens  obferves  (vol.  2.  p.  180.)  that  if  the 
mafler  keeps  his  crew  on  board,  though  at  free  liberty  to  difcharge  them,  fof 
the  preiervation  and  better  fecurity  of  the  fhip  and  cargo,  the  charge  thence 
accruing  (hould  certainly  be  deemed  grofs  average,  whether  hired  by  the 
month,  or  the  voyage :  both  fhip  and  cargo  fhould  bear  their  fliare  of  the 
lofs  or  detriment  caufed  by  the  detention  ;  but  that  the  fliip  being  hired  by 
the  month,  the  fliip's  hire  during  the  detention  fhould  ceafe,  and  only  the 
hire  and  maintenance  of  the  crew  be  made  good  both  by  the  Ihip  and  cargo. 
— M.  Valin,  in  his  commentary  on  the  faid  art.  (vol.  2.  p.  16S.)  fays,  one 
cannot  conceive  the  reafon  of  the  diverfity  of  decifion  which  it  includes: — s 
if  it  is  jult  that  the  maintenance  and  pay  of  the  failors,  during  the  time  of 
rejiraint,  fliould  be  fupported  as  grofs  average,  when  the  fliip  is  hired  by  the 
month,  why  fliould  it  be  otherwife  when  fhe  is  freighted  by  the  voyage .? 

15.  The  hire  or  wages  of  feamen  fliall  not  contribute  to  any  average, 
except  for  the  raifom  of  the  fhip. — Ordin.  of  France. 

16.  In  cafe  a  fhip  is  flaved  in  pieces  in  any  country  whatever,  the  fliip's 
crew  are  in  duty  bound  to  affifl  the  mafler  to  the  befl  and  utmofl  of  their 
power,  infaving  and  preferving  the  cargo  ;  and  when  they  have  fo  done  (but 
not  otherwife)  the  mafter  fhall  be  obliged  to  pay  them  on  his  part  their  wages 
at  that  place,  and  to  give  them  reafonable  falvage  of  the  goods  faved,  if  ho 
has  money,  or  if  not,  to  land  them  on  fhore  at  the  place  where  the  fhip  did 
belong  to. — Ordin.  of  Antzo. 

17.  Remarks — All  marine  laws  agree  in  declaring,  that  the  mariners  are 
obliged  to  exert  their  utmofl  endeavours  to  fave  as  much  of  the  fhip  and 
cargo  as  they  can  ;  and  that  if  they  negleft  it,  or  if  the  fliip  and  cargo  be 
entirely  lofl,  they  fliall  lofe  their  wages :  but  they  differ,  with  refpecl  to  the 
compenfation  that  ought  to  be  made  to  the  failors  in  cafes  of  wreck,  and 
falvage  by  them  of  part  of  the  cargo,  or  of  the  fhip,  or  of  both  : — the 
laws  of  Wifbuy  fay,  they  ought  to  be  paid  their  wages  : — the  ordin.  of 
Antwerp,  of  Phil.  2,  fays,  they  fhall  be  paid  their  wages  at  that  place,    and 

a  reafonable 


592  WAGE  S. 

a  reafonable  falvage  given  them : — the  law5  of  Oleron  fay,  the  mafter  fliall 
allow  them  a  reafonable  confideration  to  carry  them  home  : — and  that  not- 
withflanding  any  promifes  made  to  them  by  the  mafter  in  time  of  diftrefs,  it 
fliall  be  confidered  the  pains  and  trouble  they  were  at,  and  the  reward  be 
accordingly : — and  the  laws  of  the  Hanfc-Toxons  fay,  they  Oiall  have  fome 
recompenfe  for  the  faving  : — by  the  ordin.  of  France,  if  fome  part  of  the  veffel 
be  faved,  the  feamen  hired  either  for  the  voyage  or  by  the  month,  fliall  be  paid 
their  hire  out  of  what  may  have  been  faved  of  the  wreck;  and  if  there  be  only 
fome  of  the  goods  faved,  the  feamen,  even  thofe  who  were  to  fliare  in  the 
freight,  fhall  be  paid  in  proportion  by  the  mafter  out  of  what  he  may  receive; 
and  in  what  manner  foever  they  may  have  been  hired,  they  fliall  be  paid  the 
daily  hire  for  the  time  they  were  employed  in  faving  the  wreck  and  goods : 
— by  the  fame  ordinance  the  fliip  and  the  freight  are  particularly  bound  for 
the  hire  of  the  feamen; — and,  according  to  the  Conful.  del  mare,  c.  135,  and 
Cleirac,  juris,  de  la  marine,  art.  18,  p.  419,  the  feamen  retain  the  fame 
pri\  ilege  over  the  wreck  of  the  ftiip,  and  the  merchandifes  faved,  even  to  the 

laft  nail  of  the  fliip,  after  the  charges  of  falvage,  &c.  have  been  fatisfied. 

It  is  alfo  flill  frequently  praftifed  in  England,  to  allow  the  wages  of  the 
mafter  and  failors  to  be  paid,  to  the  time  of  their  difcharge,  out  of  the 
produce  of  the  wreck  of  the  fliip  and  goods  faved;  and  if  the  falved  materials 
(after  deducing  the  general  charges  of  falvage)  are  infufficient  for  that 
purpofe,  the  feamen  to  be  fatisfied  therewith ;  unlefs  the  freight  is  infured 
and  recovered,    and  in  that  cafe,    the  feamen    (freight  being  the  mother  of 

wages)    to  recover  the  whole  of  their  wages  from  the  mafter  or  owners. 

This  was  the  ufage  before  the  ftat.  12  Ann.  ft.  2.  c.  18  (made  perpetual  by 
flat.  4.  Geo.  1.  c.  12.;  and  26  Geo.  2.)  for  the  regulation  of  all  matters 
concerning  wreck  and  falvage  :  but,  by  the  2d  feet,  of  that  aft,  "the  mafter, 
or  other  officer  of  the  ftiip,  and  all  others,  who  fliall  a6l  in  the  preferving  any  fliip 
or  cargo  in  diftrefs,  fliall  be  reafonably  gratified ;  and  in  cafe  of  difagreement 
amongft  any  of  the  parties  (including  the  mafter,  mariners,  owners,  merchants, 
&c.)  thereupon,  the  quantum  of  the  rexoard  fliall  be  determined  by  three  of  the 
neighbouring  juftices  of  peace,  and  fuch  adjuftments  fliall  be  binding  to  all 

parties." It  fliould  feem  therefore  that,  as  there  is  no  mention  of  wages  in 

either  of  thofe  afts,  the  reafonable  compenfation  to  all  perfons  to  be  finally 
adjufted  as  there  prcfcribed,  and  "  the  rcfiduc  of  the  monies,  after  all  charges 
dedutled,  to  be  paid  to  the  owners  or  proprietors,"  excludes  the  mafter  and 
mariners  from  any  other  claim  (formerly  cuftomary)  as  for  wages : — never- 
thelefs,  it  is  very  common,  in  accounts  of  falvages  exhibited  to  infurers,  to 
fee  the  whole  net  produce  of  the  materials  of  the  fliip  or  goods  faved,  to  the 
amount  of  500I.  or  more,  totally  fwallowed  up  by  wages;  even  when  a  very 
f mall  part  only  of  the  voyage  has  been  performed,  before  the  misfortune  :  nay, 
I  have  feen  inftances  where,  although  the  greater  part  of  a  cargo,  and  part 
of  the  freight,  have  been  faved,  the  underwriters  on  the  fliip,  which  has  been 
wrecked,  have  fuffered  the  value  of  the  materials  which  have  been  faved 
to  a  confiderable  amount,  to  be  entirely  abforbed  by  the  payment  of  wages : 
— impofltions  thefe,  which  undoubtedly  merit  attention. 

18.     See. 


W  A  R. 


593 


11.  S>^^  Admiralty  and  Admiralty-Court,  Average,  Bottomry,  Contribution, 
Detention,  Freight,  General- Aver  age,  Nexojoundland,  Outfit,  Ranfom,  Reclaim, 
Repair,  Re/lraint,  Running- Foul,  Salvage,  Seamen,  Shipwreck,  Wager, 
Wreck. 

WAR. 

1.  /^UR  wars  with  foreign  countries  have  been  either  fpccial  or  general : 
^^  -—fpecial,  ufually  called  marque  or  reprifal:  and  thefe  either 
1.  particular,  i.  e.  granted  to  fome  particular  perfons  on  particular  occafions  to 
right  themfelves  {vide  flat.  2  H.  5,  7.)  or  2.  general  marque  or  reprifal, 
which  though  it  has  the  effeft  of  a  war,  yet  differs  in  thefe  two  inftances  ; 
1.  regularly  no  perfon  may  by  aggreffion  take  the  fhip  or  goods  of  the  adverfe 
party,  without  a  commifTion  ;  2.  the  two  nations  are  not  therefore  in  a  perfeft 
ftate  of  hoftility,  though  they  mutually  take  from  each  other  as  enemies ; 
and  many  times  thefe  general  reprifals  grow  into  a  formed  war :  fuch  was 
the  Dutch  war,  1664  : — a  general  war  is  either  folemnly  denounced,  or  not 
folemnly  denounced :  the  former,  when  war  is  folemnly  declared  or  pro- 
claimed by  our  king  againft  another  ftate :  fuch  was  the  Dutch  war,  1671, 
and  the  late  war  with  Spain :  an  unfolemn  war  is  when  two  nations  flip  into 
a  war  without  any  folemnity  ;  and  ordinarily  happeneth  among  us.  Again, 
if  a  foreign  prince  invades  our  coafts,  or  fets  upon  the  king's  navy  at  fea, 
hereupon  a  real,  though  not  a  folemn  war  may,  and  hath  formerly  arifen ; 
fuch  was  the  Spanidi  invafion  in  1588 :  fo  that  a  (late  of  war  may  be  between 
two  kingdoms  without  any  proclamation  or  indication  thereof,  or  other 
matter  of  record  to  prove  it. — Hales  Hijl.  PL  Cr.  163,  164. 

2.  However,  the  beft  civilians  lay  it  down  as  an  cftabliflied  principle, 
that  a  folemn  declaration  of  war  is  a  ncceflary  and  efl'ential  notice,  to  all 
nations  who  are  not  concerned  in  the  war,  and  are  friends  to  one  or  both  the 
contending  parties,  tb,at  they  may  obferve  thofe  laws  and  cuftoms  which  all 
neutral  nations  are  obliged  to  obferve. 

3.  The  3d.  art.  of  the  Ordin.  of  France,  tit.  affurance,  prefcribes  that 
**  the  name  and  place  of  abode  of  the  affured,  the  effeBs  whereon  the  infurance 
fliall  be  made,  the  name  of  the  fliipand  mafter,  and  of  the  place  where  the 
goods  are  or  fhall  be  loaded  and  difcharged,  fliall  bo  exprejjed  in  the  policy ;" 

in  order  to  know,  in  time  of  war,  if,  notwithfl.anding  the  prohibition   of 

commerce,  which  a  declaration  of  war  always  imports,  the  king's  fubjefts 
carry  on  any  trade  with  the  enemies  of  the  ftate,  or  with  friends  or  allies,  by 
whofe  interpofition  ammunition  and  provifions,  or  other  prohibited  goods 
miffht  be  fent  to  the  enemy  ;  all  which  would  be  fubjett  to  confifcation,  and 
to  be  declared  good  prize,  whether  they  were  found  on  board  French  fliips, 
or  thofe  of  friends  and  allies. — This  interdiftion  of  commerce  with  enemies, 
comprehends  alfo,  deplein  droit,  the  prohibition  of  infuring  the  effefts  which 
belon^^  to  them ;  whether  they  be  loaded  on  board  their  own  veflels,  or  thofe 

7  F  of 


591 


W  A  R. 


of  friends,  allies,  or  neutral  fubjefts :  for  to  infure  the  property  of  enemies, 
or  to  trade  with  them,  dire6lly  or  indireftly,  is,  in  effect,  the  fame  thing. — 
The  conduft,  however,  which  the  Englilh  held  with  us  in  the  lafl  war  (of 
ijjG)  (hews,  that  they  do  not  confider  the  prohibition  of  in/urance  as  necef- 
farily  included  in  that  of  commerce,  fmce  they  conftantly  infured  our  (hips 
and  their  cargoes,  as  in  time  of  peace  ;  whether  they  were  deftined  for  our 
colonies,  for  any  other  ports  of  France,  or  for  thofe  of  friends  or  neutral 
nations  :  this  did  not  indeed  prevent  the  captured  (hips  from  being  declared 
good  prize  ;  but  the  refult  of  it  was,  that  one  part  of  the  nation  rellored  to 
us  by  the  effeft  of  infurance,  what  the  other  took  from  us  by  the  right  of  war. 
— 2  Valins  Comm.  31. 

4.  With  refpeft  to  an  infurance  on  a  fhip  in  time  of  war,  from  London  to 
ORend,  Rotterdam,  and  the  Canaries,  warranted  an  Oftend  ftiip,  and  fhe  was 
not  fo  ;  it  was  objefted  (amongfl  other  things)  that  it  was  an  illegal  trade  ; 
and  therefore  the  plaintiff",  party  to  an  illicit  contraft,  is  not  entitled  to 
recover:  and  it  was  anfwered,  that  argument  cannot  lie  in  the  mouth  of  the 
defendant,  who  kncio  it,  and  ought  to  pay  the  lofs  ;  and  that  though  the  law 
prohibits  the  importation  of  enemy  s  goods,   it  prohibits  not  the  carrying  the 

groMth  of  this  country,   unlefs  provifions,  to  enemies. Lord  Chancellor 

faid  ;  if  the  contract  relates  to  an  illicit  fubjeft,  the  court  will  not  fo  encourage 
the  aftion  as  to  give  a  remedy :  nor  is  it  any  anfwer,  that  the  defendant  knew 
of  the  illegality  ;  for  that  anfwer  would  ferve  in  all  thefe  cafes,  and  therefore  "■ 
the  court  will  (land  indifferent : — no  determination  has  been,  that  the  infurance 
on  enemies'  (hips  during  the  war  is  unlawful  :  it  might  be  going  too  far  to 
fay,  all  trading  with  enemies  is  unlawful  ;  for  that  general  do6lrine  would  go 
a  great  way ;  even  where  only  Englifli  goods  are  exported,  and  none  of  the 
enemy's  imported,  which  may  be  very  beneficial  : — there  have  been  feveral 
infurances  of  this  fort  duiing  the  war,  which  a  determination  on  that  point 
might  hurt. — 1  Vefey's  Cafes,  371. — Nov.  14.  1749. — Hcnkle  v.  R.  E.  AJf.  Co. 

5.  It  was  thought  to  be  fomewhat  extraordinary  that,  after  the  war  of 
1747,  a  cargo  of  brandy  and  fait,  laden  on  a  Danijh  fliip,  bound  from  Nantz 
to  Dunkirk,  for  account  of  the  owner  of  the  fhip,  having  been  condemned 
in  the  commons,  the  lords  of  appeal  fliould  confirm  brandy  and  fait  bound  to 
Dunkirk,  which  was  not  a  befieged  place,  to  be  contraband,  for  this  reafon 
only,  bccaufe  they  were  of  fervice  to  the  French  army,  which  lay  encamped 
at  no  great  diilance  from  it. — 2  Mag.  638. 

6.  The  notion  o[ contraband  goods  is  of  fome  latitude,  fo  that  it  is  not 
eafy  precifely  to  determine  what  are,  and  what  are  not,  of  this  fort :  all 
-warlike Jl ores  are  undoubtedly  contraband  :  but  flill  the  queffion  returns,  what 
are  to  be  reckoned  warlike  ftores  ? — Grotius  has  removed  fome  of  the 
uncertainty  in  this  queftion,  by  dividing  goods  into  three  forts :  fome  goods 
have  no  ufe,  except  in  war,  fuch  as  arms  and  ammunition  :  fome  are  of  no 
ufe  at  all  in  war,  and  ferve  merely  for  pleafure :    and  fome  are  of  ufe  either 

for 


W  A  R.  535 

for  the  purpofes  of  war,  or  for  other  purpofes ;    fuch  as  money,  provifions, 
fliips,  and  the  materials  for  the  building,  fitting  out,  or  repairing  of  (hips : — 
the  firft  fort  is  plainly  contraband  ;    and  the  fecond  fort  is  plainly  not  fo  : 
in  the  third  fort,   in  order  to  determine  whether  they  are  contraband  or  not, 
we  mud  confider  the  condition  and  circuvijlances  of  the  xoar : — when  a  war  is 
carried  on  by  fea  as  well  as  land,  not  only  fliips  of  war,  which  are   already 
built,  but  the  materials  for  building  or  repairing  of  fliips,  will  come  under  the 
notion  of  warlike  ft;ores  :  it  may  be  faid  indeed  that  timber  or  cordage  may  be 
ufed  for  other  purpofes,  befides  the  building  or  fitting  out  of  fliips,  or  that  it 
may  be   ufed  for  the  building  and  fitting  out  of  other  fhips,  which  are  not 
fliips  of  war;  but  this  will  be  of  no  great  weight;    for  the  fame  mio^ht  be 
faid  of  horfes  or  faddles,  or  many  other  things,  which  are  commonly  reckoned 
amongft;  warlike  fl;ores ;    the  ufes   of  them   are   not  neceflarily  confined  to 
purpofes  of  war : — fo  timber  and  cordage   may  in  all  reafon  be   reckoned 
warlike  ftores,  when  from  comparing  forts  and  quantities  of  them  with   the 
condition  and  circumftances  of  the  war,  it  appears,  if  not  to  be  impoflible^ 
yet  at  lead  to  be  in  the  highefl;  degree  unlikely,  that  they  fliould  be  deji^ned 
for  any  other  purpofes  befides  the  purpofes  of  war : — even  common  provijions 
for  the   fupport  of  life  will  come  under  the  notion  of  warlike  ftores,  when 
they  are  going  to  a  place  which  is  beficged  or  blockaded :    they  are  not  indeed 
fuch  weapons  as  will  annoy  an  enemy  in  war ;  but  they  are  fuch  ftores  as  will 
help  the  nation,  to  which  they  are  carried,  to  make  it  s  defence   in  war  more 
eflfeftually  than  it  could  have  been  done  without  them,    when  one  of  it's 
towns  is  befieged  and  blockaded. — 2  Ruthcrforth's  Inft.  Nat.  Lazv,  582. — — 
It  may  not  be  improper  to  fubjoin  here,  that  by  an  additional  inftruftion 
given  by  our  court  to  all  (hips  of  war  and  privateers,  of  the  15th  of  September 
1780,  it  is  declared  that,  in  conformity  to  an  explanatory  article  of  the  treaty 
between  England  and  Denmark  of  the  11th  of  July  1670,  lately  agreed  on 
between  the  faid  two  courts  (befides  the  implements  of  war  ufually  enume- 
rated) fliip  timber,  pitch,  tar,  rofin,  copper  in  flieets,  fail-cloth,  hemp,  cordage, 
and  generally  every  thing  that  is  ufed  in  the  equipment  of  fliips  (except 
unwrought  iron  and  fir  planks)   laden  in  Danifli  fliips,  and   bound   to   the 
enemy's  country,  are  accounted  contraband  goods, 

7.  During  the  war  in  1747,  the  following  cafe  was  ftated  by  the 
commiflTionersof  the  cuftoms  ;  viz. — "  Whether  the  officers  of  the  cuftoms  will 
be  juftified  by  the  proclamations,  in  refufing  to  permit  any  entry  to  be  made 
of  goods  of  France,  or  of  any  other  growth  or  manufaftory  which  are 
imported  from  France,  or  any  other  the  dominions  of  the  French  king  ?  or 
will  they  be  thereby  juftified  in  refufing  to  permit  an  entry  to  be  made  of 
goods,  the  growth  or  manufaftory  of  France,  imported  from  any  country  not 

under  the  dominion  of  the  French  king?" Opinion  of  his  majefty's  attorney 

and /olicitor  general. — "  There  being  no  aft  of  parliament  to  prohibit  the 
importation. of  French  commodities,  and  the  afts  that  charge  them  with  duties 
being  ftill  fubfi fling,  and  thofe  duties  being  now  due  immediately  on  impor- 
tation ;    wc  are  of  opinion  the  commiflioners  are  not  warranted  in  den)ing 

them 


r,^  WAR. 

I 

them  an  entry  (which  is  the  proper  method  of  charging  them  with  the  duty) 
whether  they  are  imported  from  the  French  dominions,  or  any  other  country; 
though  fuch  importation,  if  by  the  means  of  a  correfpondcnce  between  any 
of  his  majefty's  fubjeEis  and  his  enemies,  is  a  mi/demeanour  in  fucli  fubjefts, 
and  may  be  punifhed  as  fuch. — In  this  opinion,  we  take  it  for  granted  that 
there  is  no  other  objeftion  to  the  entry  than  what  has  been  Rated. — March 
the  12th,  1747. — D.  Ryder. — W.  Murray. " 

8.  A.  a  neutral  fubjeft,  refiding  at  Malaga  (but  afting  only  as  agent  for 
B.  a  Britifli  fubjeft,  in  London)  after  the  commencement  of  hoftilities 
between  Great-Britain  and  Spain,  and  after  the  time  limited  for  Britifh 
effc6ls  to  be  fent  from  Spain,  did,  in  March  and  April  1780,  fliip  in  a  Dutch 
fiiip,  then  at  Malaga,  a  confiderable  quantity  of  goods  the  property  of  the 
faid  B. : — for  the  greater  caution  the  faid  (liip  cleared  out  for  OJlend,  and 
the  bills  of  lading  expreffed  the  faid  goods  (which  were  the  whole  of  her 
cargo)  to  be  for  neutral  account  and  rifque,  to  be  delivered  at  Oftend ;  for 
which  port  fhe  aftually  fet  fail  on  the  i6tli  of  April ;  but  being  obliged  by 
contrary  winds  to  put  back  again  on  the  18th,  flie  waited  at  Malaga,  till  the  21ft 
of  the  fame  month,  when  (lie  fet  fail  again  from  thence,  but  then  defigned  for 
London  or  Guernfey,  though  oflenfibly  for  Oftend;  for  B.  having  (in 
confequence  of  the  bringing  in  the  late  Levant  trade  bill,  permitting  the 
importation  of  goods  in  neutral  fhips  from  the  Mediterranean,  which  it 
was  imagined  would  pafs  previous  to  the  arrival  of  the  faid  fhip  in  London) 
written  to  A.  to  fend  the  (hip  (if  not  already  failed)  to  London,  and  not  to 
Oftend ;  and  A.  having  received  the  faid  letter  between  the  time  of  the  fhip's 
firft  failing  as  aforefaid,   and  her  fetting  fail  again  on  the   21ft  of  April, 

direfted  the  captain  to  proceed  to  the  port  of  London,  and  not  to  Oftend. 

On  the  16th  of  May,  the  faid  fliip  being  then  on  her  palfage  to  London,  and 
having  entered  the  Channel,  met  with  a  Britifli  privateer,  the  captain  whereof 
afked  the  faid  Dutch  mafter,  where  he  was  bound  to?  to  which  he  anfwered,  to 
London:  whereupon  the  captain  of  the  privateer  put  a  man  on  board  to 
accompany  him  to  London  ;  and  proceeded  againft  the  fame  in  the  admiralty- 
court,  as  good  and  lawful /tzz^  to  the  faid  privateer: — on  the  23d  of  June,  the 
judge  of  the  faid  court  reftored  the  fliip,  as  a  Dutch  fliip,  to  the  mafter  and 
claimant  thereof,  with  his  freight  and  expences  to  be  a  charge  on  the  cargo, 
and  referved  the  adjudication  of  the  faid  cargo  : — and  on  the  8th  of  July,  the 
judge  rejefted  the  claim  of  the  proprietors  of  the  cargo,  and  condemned  the 
whole  thereof  as  good  and  lawful  prize  to  the  captor. — The  claimants  alleged 
that,  fmce  the  commencement  of  hoftilities  wixh  Spain,  there  had  been  palfed 
"  an  ad  of  parliament  to  permit  goods,  the  produft  or  manufaclure  of  certain 
places  within  the  Levant  or  Alffi^z^errflTzmn  feas,  to  be  imported  into  Great- 
Britain  or  Ireland,  in  Britifli  or  foreign  vefiels,  from  any  place  zchatever,  &c. :" 
that  the  cargo  in  queftion  is  of  the  growth  or  produft  of  fuch  places  ;  and  that, 
fmce  the  paifmg  die  faid  aft,  feveral  fliips  have  arrived  in  the  port  of  London 
with  goods  from  that  part  of  Spain  which  lies  within  the  Straights  of  Gibraltar, 
and  have  been  entered  at  the  cuftom-houfe,  merely  under  the  libcrtv  given, 

as 


W  A  R. 


597 


bs  conceived,  by  the  faid  Levartt  trade  bill,  without  any  feizure  or  molefta- 
tion  ;  and  at  the  fame  time,  the  goods  fo  brought  from  Spain  have  been 
well  known  and  acknowledged  as  the  property  of  Britijli  fubjefts,  and  the 
fame  is  conceived  as  legal,  and  that  it  was  the  intent  of  the  legiflature  in 
•pafling  that  bill  that  not  only  neutral,  but  Br itiJJi property  might  be  fo  imported. 

Query,  Whether  there  is  not  a  profpeCl  of  obtaining,  upon  an  appeal,  a 

fentcnce  reverfmg  the   decree  of  the  judge  of  the  court  of  admiralty  ? 


Opinion  of  Dr.  William  Wynne,   the  king's  advocate. — "  I  take  it  to  be  clear^ 
that  all  commerce,  between  the  inhabitants  of  Great-Britain  and  thofe  of  any 
country   with    which    Great-Britain    is    at   war,    is    illegal;    and   that   fucli 
interruption  of  commerce  between  the  two  countries  is  effential  to,    and  a 
neceffary  confequence  of,  an  actual  flate  of  war,    whether  there  has  been  any 
exprefs  proliibition  of  commerce  publifhed  or  not:    and  I  do  not  think  that 
this  univerfal  and  eftabliflied  principle  of  ihe  law  oj' nations,  is  in  any  manner 
altered  by  the  Levant  trade  bill  lately  palled  ;   which  makes  no  mention  of  a 
direft  intercourfe  between  Great-Britain  and  Spain  ;   and  the  intent  of  which 
may  be  in  a  great  meafure  anfwered  by  the  importation  of  goods,  from  Spaua 
into  Great-Britain,  by  neutrals  upon  their  ozon  account ;  which  could  not  have 
been  done,  without  relaxing  the  reftriftions  of  the  aft  of  navigation  : — for  thefe 
reafons  I  cannot  think  that  B.  will  have  any  good  profpeft  of  obtaining  a  reverfal 
of  the  fentence  of  the  court  of  admiralty  upon  an  appeal ;  though  it  may  be  very 
proper  and  neceffary  to  profecute  one,  for  the  fatisfaction  as  well  as  fecurity  of 
the  many  perfons  who  muft  be  interefted  in  the  queftion. — With  refpeft  to  the 
opinion  or  conduct  of  the  commifTioners  of  the  cufloms,  it  will  not,  I  think, 
have  much  weight  in  the  cafe,  as  they  have  no  jurifdiftion  to  decide  or  examine 
it,  and  mud  give  credit  to  the  fentence  of  the  court  of  admiralty,  if  it  is  not 
reverfed    by  the   lords  commiihoners  upon  an  appeal   to  them.  —  Doclors 

Commons,  25th  of  July  1780." The  faid  cargo  having  been  infured  in 

London,  and  the  underwriters  being  made  acquainted  Avith  the  capture,  they, 
on  the  application  of  the  allured,  figned  the  following  agreement,  on  the 
policy,  VIZ. — "  Whereas  the  (hip  from  Malaga  to  Ollend  and  London, 

with  liberty  to  touch  at  Guernfey,  has  been  taken  by  the  privateer, 

and  not  permitted  to  proceed  to  Guernfey  ;  we,  the  underwriters  on  the  cargo 
of  the  faid  (hip,  do  authorife  and  empower  the  allured  to  fue  lor  the  releafe- 
ment  of  the  faid  (hip,  and  do  bind  ourfelves  to  pay  all  expenccs  in  recovering 
the  cargo,  according  to  our  refpe6live  fubfcriptions,  over  and  above  a  total 
lofs,  fhould  it  fo  happen,   and  to  continue  our  rifques  until  her  arrival  at 

Guernfey." The  allured  then  ftated  the  whole  of  their  cafe  (of  which  the 

foregoing  are  all  the  material  circumftances)  upon  which  they  received  the 

following  opinion  of  counfel. Mr.  Dunning's  opinion. — "  I  cannot  difcover 

on  the  face  of  the  fentence  the  grounds  on  which  the  judge  of  the  admiraltv- 
court  thought  lit  to  condemn  this  cargo  ;  and  I  incline  to  think  that  it  will 
on  an  appeal  be  reverfed :  but  fuppofing  it  to  be  on  the  idea  that  it  was  to 
be  confidcred  as  Spanifh  property,  the  policy  containing  no  warranty  of  it's 
being  otherwife,  the  voyage  intended  being  fulhciently  defcribed,  and  the 
truth  of  the  cafe  difclofed  to  the  underwriters,  I  think  they  are  anfwerable 

7  G  '  for 


598 


W 


for  their  refpeftive  fubfcriptions,  and  the  cofts  of  the  fuit  in  the  admiralty  ; 
as  I  fee  nothing  illicit  in  the  conveyance  of  Britijh  property  from  Spain  in  a 
neutral  bottom,  all  obje6lion  from  the  navigation  aft  being,  as  I  conceive, 
removed  by  the  late  aft,  allowing  the  importation  of  goods,  ufually  imported 
from  the  Mediterranean,  in  foreign  vellels  belonging  to  any  country  in  amity 

with  this. — J.  Dunning,    ill  of  September   1780." The  underwriters  alfo 

flated  their  cafe,  in  which  they  alleged  that  they  were  unacquainted  that  the 
cargo  was  Britifh  property,  or  that  the  bringing  it  home  was  illicit ;  and  that 
under  fuch  ideas  they  were  induced  to  fign  the  aforementioned  fubfequent 

agreement,  which  they  faid  was  void,  if  the  original  infurance  was  fo. 

Mr.  Attorney  General's  Opinion. — "  The  trade  between  Spain  and  Great-Britain 
being  illicit,  all  infurances  made  to  proteft  the  fame,  or  indemnify  thofe 
concerned  therein,  are,  as  I  conceive,  void  in  law :  and  that  in  the  prefent 
cafe  the  underwriters  cannot,  in  my  opinion,  be  compelled  to  pay  their 
fubfcriptions,  though  both  parties  feem  to  have  been  ignorant  of  the  law  : — 
but  the  cofts  of  litigation  feem  to  me  to  differ  materially  from  the  original 
fubfcription,  as  they  may  be  looked  upon  as  expences  incurred  at  the  exprefs 
inftance  of  the  infurers  ;  and  it  does  not  appear  that  the  allured  would  have 
engaged  in  the  litigation  without  the  pofitive  undertaking  of  the  underwriters. 
I  therefore  incline  to  think  the  underwriters  ought  to  contribute  according  to 
their  fubfcriptions  to  the  expences  of  litigation  in  the  court  of  admiralty. — 

James  Wallace,  the  29th  of  September  1780." How  the  parties  will  govern 

themfelves  in  confequence  of  thefe  contrary  opinions  of  counfel,  either  with 
refpeft  to  an  appeal,  the  infurance,  or  the  charges,  is  at  prefent  uncertain. 

g.  Remarks. — In  a  time  of  hoflilities,  and  efpecially  during  an  open 
war,  the  various  and  perpetually  increafing  circumftances  of  rifque  of  every 
fort,  are  fo  impoffible  to  be  forefeen,  and  often  fo  contrary  to  all  conjefture 
that  can  be  formed,  even  by  the  mofl  penetrating  comprehenfion,  that  it 
behoves  an  underwriter  to  be  inceffantly  attentive,  and  beating  about  for  the 
niofl  particular  informations  and  intelligence,  both  public  and  private,  that  he 
is  able  to  obtain,  in  order  to  the  exercife  of  an  inftantaneous  judgment  and 
decifion  upon  each  policy  that  may  be  prefented  to  him ;  not  only  with 
regard  to  the  probable  degree  of  rifque  compared  with  the  premium,  in 
contemplation  of  the  common  events  of  war ;  even  in  cafes  where  the 
fairnefs  of  them  may  be  unquellionable ;  but  alfo  (and  which  perhaps  will 
require  a  flill  keener  eye)  to  guard  againft  the  numerous  deceptions,  impo- 
fitions,  and  frauds,  to  which  the  moft  watchful  will  neverthelefs  be  very 
frequently  expofed  :  nor  is  it  prafticable  to  point  out  the  many  delulive 
methods  invented  and  put  in  praftice,  in  times  of  war,  by  fcheming  and 
unprincipled  adventurers,  to  enrich  themfelves  at  the  expence  of  underwriters  : 
for,  although  fome   of  them  become  fufficiently  apparent  in  the  event,  yet 

fewer  are  capable  of  full  or  legal  deteftion. The  many  illicit  contrivances, 

•ndifcovered  deviations,  and  traverfmg  about  with  intent  to  make  other  ports, 
or  meet  other  (hips  for  contraband  trade,  and  other  purpofes  than  are 
mentioned  in  the  policies  ; — the  defignedly  and  unnecefl'arily  fleering  a  courfe, 

or 


WAR.  5g^ 

or  lying  to,  in  latitudes  where  there  is  the  greatefl;  probability  of  beino- 
iix3ide  capture  o^ ; — the  great  over-vahiations  of  fhips  and  goods  with  thefe 
views  ; — the  intereft  of  the  majlcr,  and  fupercargo,  or  pafllngers,  in  the  Ihip 
or  cargo,  or  both,  having  alio  the  direElion  of  the  voyage ; — and  the  mafters 
infuring  a  fum  befides,  on  his  wages,  books,  inflrumcnts,  &c.  to  be  paid  in 
cafe  of  lofs,  4  to  10  times  their  value,  without  any  proof  of  interejl  to  be 
required ; — the  mere  nominal  but  really  defeftive  force  of  the  fhip  in  guns 
and  men,  and  the  want  of  intention  in  the  owners,  or  inclination  in  the 
mafter,  to  defend  her,  in  cafe  of  attack; — the  various  methods,  feldom 
effeftual  if  molefted,  of  mafquing  the  property,  to  obtain  infurance  at  a 
fmaller  premium,  and  otlier  irregularities  and  defefts  in  the  papers  and 
documents  on  board,  fubjefting  the  fhip  to  \GXdii\o\isfeizure,  detention,  and 
great  charge; — robberies  or  captures  hy  piratical  or  pretended  privateers, 
belonging  to  fubjefls  of  neutral  ftates,  having  forged  or  illegal  commijjions  ; — 
captures  of  neutral  flips,  even  with  neutral  goods,  having  bills  of  lading,  &c. 
from  the  fubjetls  of  one  of  the  belligerent  ftates ; — indireft  and  clandeftine 
correfpondence,  intelligence,  and  connivance  with  the  enemy,  for  the  purpofe 
of  capture,  &c. ; — concealments  of  true,  and  reprefentations  of  falfe  fafts, 
dates,  and  other  intelligence,  at  the  time  of  making  infurance,  in  order  to 
get  it  efte6led ; — the  additional  dangers  (though  infured  at  fmall  premiums) 
to  which  merchant  fliips  having  letters  of  Margue,  are  often  expofed,  by 
cruifng  or  chafmg  out  of  their  courfe  to  make  prizes  ; — veflels  leaving  their 
convoys,  with  which  they  have  been  warranted  to  depart ; — or,  if  there  has 
been  no  fuch  warranty,  yet,  having  departed  with  convoy,  and  happened 
to  arrive,  returns  of  premium  demanded,  although  the  vellels  have  wilfully 
left  their  convoy,  undifcovered  by  the  underwriters ; — alteratioyis,  or  additions, 
foifted  into  policies   after  fubfcribed,  without  the  knowledge  or  confent  of 

the  infurers  : thefe,  and  an  infinity  of  other  rifques  (particularly  during 

our  very  complicated  contefts  with  France,  Spain,  and  our  North  American 
Colonies,  which  have  been  attended  with  various  uncommon  circumftances) 
befides  thofe  which  are  naturally  incident  to  a  ftate  of  war,  can  no  otherwife 
be  avoided  by  underwriters,  than  by  a  conftant  attention  to  acquire  every 
cncnm^TmcG  o^  information  ;  and  efpecially  as  to  the  character,  principles, 
and  ufual  tranfaftions  of  the  perfons  concerned  in,  or  connecled  with,  the 
voyages  and  interefts  infured ;  and  in  cafes  of  damage  or  lofs,  habitually 
and  uniformly  to  require  authentic  proofs  of  fa£ts,  dates,  papers,  advices, 
whether  written  or  verbal,  and  all  fuch  other  matters  as  may  tend  to  afcertain 

the  fairnefs,  or  deteft  the  fallacy  of  the  demands. With  refpeft  to  infu- 

rances  made  previous  to  the  commencement  of  a  war,  or  hoftilities,  which 
are  commonly  forefeen  or  fufpefted  fome  time  before  they  happen;  it  is 
ufual  on  fuch  occafions,  to  ftipulate  in  the  policy  a  large  premium  accordingly, 
with  a  condition  to  return  a  certain  part  of  it,  in  cafe  the  war  fhould  not 
be  declared,  or  hoftilities  or  reprifals  commence,  before  the  termination  of 

the  voyage  or  rifque. Under  title.  Enemy,  the  reader  will    find   amply 

difcufled,  the  interefting  qileftion,  "  Whether  it  be  right,  advantageous,  or 
even  legal,  to  infure  the  property  of  enemies,  in  time  of  war  ?" 

10.     See 


6oo  WARRANTY. 

lO.  See  Prelim.  Difc.  64*  Alteration  of  Policy  Voyage  or  Rifcjue,  Average, 
Barratry,  Bottomry,  Capture,  Claim,  Covimijfwn  of  Marque,  Concealment, 
Condemnation,  Confifcation,  Contraband,  Convoy,  Date,  Detention,  Enemy, 
Event,  France,  Fraud,  Freedom  of  Navigation,  Hoflility,  IllcgaUiy,  Laxo  of 
Nations,  Letter  of  Marque,  Mafqued  Ship  or  Property,  Majlcr,  Name,  Neu- 
tral Ship  or  Property,  Paffport,  Pirate,  Prize,  Prohibited  Goods,  Property, 
Ranfom,  Recapture,  Reclaim,  Reprifal,  Rcfraint,  Rifque,  Salvage,  Sea, 
Seizure,  Ships  of  War,  Treaty,  Valuation. 


WARRANTY. 

1.  T^HE  infured  fhould  be  cautious  of  inferting  an  exprcTs  warranty  in  the 
-^  policy,  with  refpeft  to  the  time  of  the  (liips  (Jcparturc,  the  departing 
with  convoy,  l\\t  property  of  the  fliip  or  goods,  the  number  o^  her  guns  or  men, 
and  fundry  other  circumftances,  efpecially  with  regard  to  fhips  homeward 
bound ;  becaufe  from  the  natural  uncertainty  of  things,  there  may  be  fome- 
times  confiderable  danger  of  the  infurance  being  vacated,  by  the  warranty  not 
being fri^ily  fulfilled  :  fo  that,  when  the  aflured  is  not  abfolutely  certain  that 
it  will  be  fo,  the  fafeft  way  is,  to  give  what  is  commonly  called  the  long 
premium,  to  include  all  rifques,  with  the  condition  of  receiving  a  return  of  a 
part  of  it,  in  cafe  the  (hip  fhould  arrive  under  fuch  or  fuch  a  circumflance. — 
On  the  other  hand,  it  is  alfo  frequently  neceffary  for  the  infurer  to  be  cautious 
of  underwriting  a  policy  upon  a  verbal  allurance  only  of  any  particular 
circumflance,  or  fa6l,  which  may  determine  his  judgment,  and  induce  him  to 
take  upon  him  the  rifque  ;  for,  in  the  bufinefs  of  infurance,  concealments  and 
mifreprefentations  are  become  fo  very  common,  and  pafs  with  fo  much 
impunity,  that  if  the  aflured  or  broker  declines,  when  required,  to  w^arrant 
in  the  policy  the  particular  material  circumflance,  which  he  verbally  afferts  to 

be  true,   there  is  reafon  to  think  that  he  means  to  deceive. A  verbal 

warranty  ought,  in  reafon  and  juflice,  to  be  as  binding  as  a  -written  one 
inferted  in  the  policy;  but  it  is  always  difficult  to  prove  the  former,  whilfl  the 
latter  proves  itfelf. 

2.  Case. — The  fliip  Charming  Peggy  was  infured,  in  1739,  from  North- 
Carolina  to  London,  with  a  warranty  againft  captures  and  feizures  : — and  in 
an  aftion,  the  lofs  was  laid  to  be  by  finking  at  fea: — all  the  evidence  given 
was,  that  fhe  failed  out  of  port  on  her  intended  voyage,  and  has  never  fince 
been  heard  of:  and  feveral  witnefles  proved,  that  in  fuch  a  cafe  \.\\q  prefnmption 
is,  that  file  foundered  at  fea,  all  other  forts  of  lofles  being  generally  heard  of. 
— The  underwriters  infifled,  that  as  captures  and  feizures  were  excepted,  it 
lay  upon  the  aflured  to  prove  the  lofs  in  the  particular  manner  declared  on : 
— but  the  chief  juflice  faid,  it  would  be  unreafonable  to  expeft  certain 
evidence  of  fuch  a  lofs,  as  where  every  body  on  board  is  prefumed  to  be 
drowned;  and  all  that  can  be  required  is  the  beft  proof  the  nature  of  the 
cafe  admits  of,  which  the  plaintiff  has  given :  he  therefore  left  it  to  the  jury, 

who 


WEAR        AND        TEAR.  6ol 

who  found  the  lofs  according  to  the  plaintiff's  declaration. — Stran.  1199, 
17  Geo.  2. — Green  v.  Broion. 

3.  Case.— On  the  8th  of  December  1777,  a  policy  was  Underwritten  by 
the  defendant,  on  goods,  in  a  French  fliip,  Le  Compte  de  Trebon,  Capt.  N. 
Serville  Trenchant,  "  at  and  from  Martinico  to  Havre  de  Grace,  with  liberty 
to  touch  at  Guadaloupe  ;  warranted  to  fail  after  the  12th  of  January,  and  on 
or  before  the  ill  of  Augufl.  1778:" — the  infurance  was  made  by  the  plaintiff 
on  the  account  of  Jacques  Horteloupe  and  Louis  Delamare  of  Havre  de 
Grace,  owners  of  the  fhip  and  cargo;  at  which  time  it  was  not  known 
whether  fhe  would  load  at  Martinico  or  Guadaloupe,  they  having  goods  to 
come  from  both  places ;  the  policy  was  therefore  intended  to  cover  the  rifque 
from  both,  or  either  of  them  : — the  fhip  having  finiflied  her  outward  voyage 
at  Martinico,  Jailed  from  thence  on  the  6th  of  November  1 777,  for  Guadaloupe ; 
where  fhe  took  in  her  whole  loading,  m  ithout  returning  to  Martinico,  which 
the  captain  intended  to  do,  had  he  not  got  a  complete  cargo  at  Guadaloupe : 
from  whence  fhe  failed  on  the  26th  of  June  1778,  was  taken  on  the  3d  of 
September   by  the   Revenge,   a   Guernfey  privateer,    Capt.  Drew,  carried  in 

there  the  12th  of  September,    and  afterwards  condemned. The  plaintiff 

demanded  payment  of  the  lofs  from  the  underwriters ;  which  being  refufed, 
he  brought  aftions  againfl  them  for  the  recovery  thereof: — the  objeftions  of 
the  defendant  were,  that  according  to  the  words  of  the  policy  the  voyage 
was  to  commence  from  Martinico,  and  not  from  Guadaloupe ;  and  that  the 
warranty  of  the  twie  of  failing  was  not  complied  with  ;  the  fhip  having  failed 
from  Martinico  before  the  i2thof  January  1778,  viz.  on  the  6th  of  November 

1777. Verdicl    for    the    defendant. — At   Guildhall,    before    Mr.   Juftice 

Buller,  Eaft.  1779. — Vczianv.  Grant. 

4.  See  Prelim.  Difc.  29.  Alteration  of  Policy  Voyage  or  Rifque,  Claife^ 
Commencement  of  Voyage  or  Rifque,  Concealment,  Convoy,  Date,  .  Deceit, 
Departure,  Evidence,  Lofs,  Mifreprefentation,  Miflake,  Neutral  Ship  or 
Property,  Policy,  Return,  Seafon,  Sea-worthy,  Voyage,  War,  Written  Claufe, 


WASTAGE. 

See  Average,    Leakage,    Perifhable-Covimodities,  Salt,  Sugar,  Wear  &  Tear. 


WEAR         AND         TEAR. 

N  S  U  R  E  R  S   are  not  liable  to  make  good  any  lofs,  diminution,  or 
wafle,  which  may  happen  through  the  infufhciency,  the  natural  decay, 
the  perifhable  quality,    the  ordinary  ufe  of  the  thing  infured,    or  the  ufual 

wear  and  tear  in  the  common  courfe  of  a  voyage. There  are,  neverthelefs, 

7  H  continual 


•I 


6o2  WEAR        AND        TEAR. 

continual  impofitions  upon  infurers  in  thefe  refpecis ;  and  maftcn  of  fhips 
generally  take  good  care  to  exaggerate,  in  their  prolejls,  every  little 
accident,  or  trifling  fea  they  Ihip,  and  the  leaft  blowing  weather,  in  order 
to  include  in  the  demands  of  average,  under  the  denomination  of 
repair  of  damages,  what  in  reality  was  the  effeft  of  mere  in/hfficicncy  or  of 
neceflary  wear  and  tear. — For  which  reafon,  the  rigging  or  tackle  of  (liips 
are,  by  fome  laws,  prohibited  from  being  comprehended  in  the  infurance  of 
(liips,  as  being  fubjeft  to  be  worn  out : — as  alfo  their  provifwns,  or 
ammunition,  becaufe  of  their  conllaut  confumption. 

2.  It  is  a  fettled  doctrine,  that  all  appurtenances  belonging  to  a  fliip  ought 
to  be  made  of  the  beft  materials,  and  ftrong  enough  to  hold  good,  and  refift 
any  force  of  ftorms,  which  will  often  be  met  with  in  the  common  courfe  of  a 
voyage. — Were  infurers  obliged  to  pay  for  every  cable  and  rope  that  breaks, 
and  for  every  Jiiil  that  fplits,  or  blows  to  pieces,  there  would  be  no  other  way 

of  infuring  upon  JJiips    but  free  of  all  particular  average. Neverthelefs, 

the  infurers  are  liable  for  whatever  lofs  or  damage  may  accrue  to  a  flnp,  by 
the  mailer's  extraordinary  endeavours  for  her  prefervation  :  for  indance,  if  to 
avoid,  or  efcape  from  an  enemy,  a  fhip  anchors  in  an  open  road,  under  the 
proteftion  of  fome  caftle,  and  there  parts  her  cable,  it  ought  doubtlefs  to  be 
confidered  as  a  grofs  average  :  moreover,  if  the  mafler,  finding  her  too  near 
a  lee  Jliore,  apprehends  that  to  fave  his  fhip  he  muft  carry  fo  much  fail  as  to 
rifque  the  carrying  his  mafts  by  the  board,  and  to  fave  them  deliberately 
comes  to  an  anchor;  in  this  cafe,  fliould  a  cable  be  loft,  if  it  is  not  to  be 
confidered  as  a  grofs  average,  it  ought  at  leaft  to  be  made  good  by  the 
infurers  on  the  (hip : — and  where  it  is  proved  that,  in  endeavouring  to  keep 
clear  of  a  lee  fhore,  new  fails  are  blown  away,  and  cables  parted  by 
anchoring  in  open  fea  to  avoid  driving  afliore,  the  lofies  being  occafioned 
by  ftriving  to  preferve  the  whole  fhould  be  made  good  by  a  general  average; 
fince  it  is  for  the  intcreft  of  the  infurers  as  well  as  the  common  advantage,  to 
make  it  the  mafter's  intereft  to  fpare  nothing,    in  fuch  extraordinary  cafes,  to 

fave  the  ftiip  from  ftranding. But,  as  it  is  alfo  for  the  common  good,  that 

fliips  fliould  not  go  to  fea  without  good  cables,  fails,  &c.  thofe  cables  that 
are  not  fufhciently  ftrong  for  a  fliip  to  ride  with,  in  the  ufual  loading  places, 
or  any  fails  blown  to  pieces  by  ftormy  weather  in  the  comrhon  courfe  of  a 
voyage,  fliould  not  be  paid  for  by  the  infurers;  as  it  might  be  an  incitement 
for  mafters  not  to  go  without  good  ones. — i  Mag.  52. 

3.  It  is  the  ufage,  in  cafes  of  total  lofs,  or  fliipwreck,  for  the  infurers 
to  pay  the  full  value  of  the  fliip,  as  it  ftood  at  the  outfet,  or  according  to  the 
valuation  in  the  policy ;  but  this  is  in  many  cafes  unreafonable,  and  a  great 
temptation  to  fraudulent  lolfes ;  particularly  when  a  fliip  has  been  a  long 
time  out,  and  performed  a  confiderable  part  of  a  long  voyage,  and  even  a 
part  of  the  cargo  and  likewife  part  of  the  freight  is  faved :  becaufe  it  is 
evident  that,  had  flie  arrived  home  in  fafety,  her  value  muft  have  been  con- 
fierably  diminiflied,  by  the  ordinary  decay  and  wear  and  tear : — -which  matter 

is, 


P 


WHALE-FISHERY.  603 

is,   therefore,    very  properly  regulated  by  an  article  in  the  ordin.  of  Amjl.  of 

1744  (which  I  have  inferted  under  title,  Rifcjue). If  the  underwriters  on  the 

fliip,  in  fuch  cafe,  pay  a  total  lofs,  according  to  a  high  valuation  in  the  policy, 
or  according  to  the  full  original  amount  of  the  outfet  (including  the  advance 
to  feamen,  provifions  confumed,  wear  and  tear,  &c.)  they  ought  at  leaft  to 
be  entitled  to  the  freight  which  is  faved,  or  fome  part  thereof.— 2  VaUn's 
Comm.  115. 

4.  See  Accident,  Anchor,  Average,  Cable,  Cordage,  Damage,  Detention, 
Freight,  General  Average,  Infufficiency,  Intcrejl,  Outfit,  Provifions,  Repair, 
Rifqiie,  Sea-worthy,  Shifi,  Stranding,  Total  Lofs,  Valuation. 


WESTMINSTER     FIRE-OFFICE. 

»•  'T^HIS  fociety  was  ereded  in  1717,  and  is  exadly  fimilar  to  the  Hand- 
-•-     in-Hand  fociety. 

2.     See  Fire,  Hand-in-Hand  Fire-Office,  Society. 

WHALE-FISHERY. 

1.   "D  Y    Stat.  i6  Gfo.  3.   c.  47.    r  1. — Whereas  a  valuable  whale-fifiiery  has 
■*-^  been  lately  difcovered   in  the  feas  to  the  foiithward  of  the  latitude  of 
forty-four  degrees  north  ;   for  carrying  on  which  it  is  neceffary  that  the  fhips 
to  be  employed  therein  fliould  be  fitted  out  at  a  different  feafon  of  the  year 
from  that  mentioned  in  the  15  Geo.  3.   c.  31    [See  Neufoundland^   and  it  is 
juft  and  expedient  that  the  like  bounties  (hould  be  granted  to  fhips  fo  fitted  out, 
and   employed    in   fuch   fifl^ery ;  be    it   enacled,    that   the   feveral  bounties 
hereafter  mentioned  fliall  be  allowed  annually  for  eleven  years,  for  fve  veffiels 
which  fhall  be  employed  in  the  faid  fifliery  in  the  feas  to  the  fouthward  of  the 
latitude  of  forty-four  degrees   north,    under  the  limitations  and  refiriftions 
herein  after  expreffed ;  viz.    to  be  Britifli  built,    manned   with  three-fourths 
Britifh  fubjefts,  and  fitted  and  cleared  out  from  fome  port  in  Great-Britain  or 
Ireland,    or  the  iflands  of  Guernfey,   Jerfey,  or  Man,    after  the   ill  day  of 
Augiijl  and  before  the    ift  day  of  November   1776,    and  the  fame  in  each 
fucceeding  year,  and  fhall  take  and  kill  one  whale  at  the  leafl  in  the  faid  feas, 
and  fhall  return  before  the  11th  day  o^  Augujl  next  following  in  each  year, 
to  fome  port  in  England,  with  the  oil  of  fuch  whale  or  whales;  and  on  the 
mafter  and   mate  making  oath  thereof,    fuch  oil    may  be    landed    without 
payment  of  any  duty ;    and  there  fhall  be  paid  for  the  veffel  which  fhall  fo 
arrive  in  each  year,   with  the  greatefl  quantity  of  oil  fo  taken  five  hundred 
pounds  ;  for  the  veffel  w^ith  the  next  greatefl  quantity  four  hundred  pounds  ; 
for  the  veffel  with  the  next  greatefl  quantity  three  hundred  pounds  ;    for  the 
veffel   with  the   next   greatefl  quantity  two  hundred  pounds;    and  for  the 

veffel 


6oi  W    I    S    B    U    Y        LAW    S. 

\'enel  Avith  the  next  greaiek  quantity  one  himdred  pounds ;  the  faid  refpeftive 
bounties  to  be  paid  within  two  months  after  the  expiration  of  each  year  in  which 

fuch  veflel  fliall  arrive. S.  2.    No  bounty  fliall  be  allowed  unlefs  the  entire 

property  o^  fuch  fliip  fhall  belong  to  fome  of  his  majefty's  fubjefts  refiding  where 
fuch  (hip  fhall  be  fitted  and  cleared  out ;  nor  to  any  fliip  fitted  out,  &c.  in  pur- 
fuance  of  this  and  the  faid  aforementioned  acl,  unlefs  fuch  fliip  fliall  have  on 
board  an  apprentice,  indentured  for  three  years  at  Icafl,  for  every  fifty  tons 
burthen  of  fuch  fliip,  every  fuch  apprentice  not  exceeding  the  age  of  eighteen 
years,   nor  being  under  fourteen  at  the  time  he  fhall  be  fo  indentured. 

2.     See  Bounty,  Fijhery,  Greenland,  Ireland,  Newfoundland. 


WISBUY         LAWS. 

1.  'T^  H  E  ifle  of  Gothland  is  fituated  by  the  Gothic  fea,  in  the  diocefe  of 
^  Licopen :  it  formerly  belonged  to  the  king  of  Sweden,  but  was 
afterwards  annexed  to  the  crown  of  Denmark.  In  the  north-eafl  part  of  the 
ifland  was  a  very  fiiir  and  noble  fea  port  town  called  W^Jbuy,  built  by 
foreigners  who  came  to  live  in  the  country :  upon  which  account  the  citizens 
of  Wifbuy  had  frequent  quarrels  with  the  Gothlanders,  or  inhabitants  of  the 
country,  of  whom  they  made  a  terrible  flaughter  in  the  year  1288:  after 
which  the  citizens,  to  defend  themfelves  againfl  their  enemies,  obtained  a 
permilfion  from  Magnus,  king  of  Sweden,  to  wall  their  city,  and  ere6l 
baflions,  and  other  fortifications.  They  flouriflied  more  and  more,  and  grew 
great  by  tlieir  trade  and  navigation,  to  which  they  entirely  gave  themfelves 
up :  infomuch  that  this  town  was  a  long  while  the  axis  and  mod  celebrated 
market  of  Europe,  there  being  no  city  fo  full  of  merchants,  and  fo  famous 
for  it's  commerce.  Hither  came  Swedes,  Ruffians,  Danes,  Pruffians,  Livo- 
nians,  Germans,  Finlanders,  Vandals,  Flemings,  Saxons,  Englifh,  Scots, 
and  French,  to  trade  :  each  nation  had  their  quarter,  and  particularly  flreets 
for  their  (hops  or  warehoufes :  all  flrangers  were  fafe  and  welcome  there, 
and  enjoyed  the  fame  privileges  as  the  townfmen  themfelves  :  the  magiftrates 
of  this  city  had  the  jurifdiclion,  or  rather  the  arbitrament,  of  all  caufes  or 
fuits  relating  to  fea  affairs :  their  ordinances  Avere  fubmitted  to  in  all  fuch 
cafes,  and  paflcd  for  jufl  on  all  the  coafls  of  Europe,  from  Mufcovy  to  the 
Mediterranean, — Thus  much  is  taken  from  Olaus  Magnus,  lib.  10.  cap.  \6, 
and  baron  Herbejlain,  In  Rerum  Miifcovitarum  Comvientario ,  p.  118. — In 
the  courfe  of  time,  this  town  was  entirely  deftroyed,  except  the  citadel, 
which  ftands  to  tliis  day.  The  Gothic  hiftorians  do  not  tell  us  when  or  how 
it's  deflru6lion  came  upon  it ;  only  that  it  was  through  civil  diffentions  which 
arofe  from  trifles,  but  occafioned  great  fa6lions ;  which  fet  them  fo  againfl 
one  another,  that  it  ended  in  the  entire  ruin  of  them  all,  city  and  citizens. 
The  ruins  of  it  are  now  to  be  feen,  and  under  them  are  often  found  tables  of 
marble,  porphyry,  and  jafper,  witneffes  of  the  ancient  fplendor  and  magnifi- 
cence of  the  citizens.     The  houfes  were  covered  with  copper,    the  windows 

gilt 


WOOL    AND   WOOLLEN   MANUFACTURES.    60^ 

gilt  with  gold,  and  all  that  is  faid  or  that  is  difcovered  of  it  fiiews  the 
ineftimable  riches  of  the  inhabitants  in  times  paft.  The  citizens  who  furvived 
the  ruin  of  the  city  retired  to  the  country  of  the  Vandals  and  Eallern  Saxons, 
who  were  enriched  with  the  wealth  of  thefe  refugees.  Albert,  king  of 
Sweden,  rebuilt  it,  and  granted  great  privileges  to  all  that  fhould  come  and 
inhabit  in  it:  but  it  never  could  recover  it's  trade  and  former  magnificence. 
It  was  in  this  city  of  Wifbuy  that  the  fea  laws  and  ordinances,  which  the 
Swedes  brought  into  credit,  were  compofed ;  they  were  received  as  righteous 
and  juft,  and  are  kept  in  the  Teutonic  language  'till  now.  The  Germans, 
Swedes,  Danes,  Flemings,  and  all  the  people  of  the  north  obferve  them:  but 
none  have  been  fo  curious  as  to  preferve  the  date,  and  the  remembrance  of 
the  time  when  they  were  compofed  and  publilhed. — Some  have  fuppofed  they 
are  more  ancient  than  the  lavv^s  of  Oleroti ;  the  firfl  known  publication  of 
which,  according  to  M.  Valifi,  in  the  preface  to  his  learned  commentaire  fur  1' 
ordonnance  de  la  marine  du  mois  d'  aout  i68i.  was  in  the  year  1266;  and 
the  date  of  thofe  of  Wifbuy,  according  to  Sdden,  goes  no  further  back 
than  12S8: — but  there  is  reafon  to  think  that  both  the  laws  of  Oleron  and 
thofe  of  Wifbuy  (the  mod  material  of  which  arc  quoted  in  different  parts  of 
this  work)  are  of  more  remote  origin  than  hath  been  hitherto  afcertained, 

2.     See  Prelim.  Difc.  Gj.   Civil  Law,   Maritime  Laxo,   Oleron,  Rhodian 
Lazos,  Sea  Laws. 


WITNESS. 

1.     A     Pcrfon  liable  to  be  contributor;^  to  the  defendant  for  the  damages 
■^  ^  recovered,  ii  incompetent  to  be  a  witnefs. — 2  Burr.  2729. 

2.     See  Evidence,  Order,  Parol  Agreement,  Proof,  Verditl,  Warranty. 

WOOL  AND  WOOLLEN  MANUFACTURES. 

1.  T  O  R  D  Chancellor  faid,  as  to  infurances  on  wool  tranfported  to 
-*— ^  France,  I  never  doubted  but  that  was  an  unlawful  contraft  ;  and 
therefore  if  a  cafe  came  before  me,  when  I  was  chief  juflice,  both  fides 
knowing  it,  and  a  feizure  for  that  by  the  cuftom-houfe  officer,  I  fliould  have 
held  it  an  illicit  infurance  and  contraft. — i  Vefey  317. 

2.  By  Stat.  12  Geo.  2.  c.  21.  f.  29. — All  perfons  who  by  way  of  infurance 
or  otherwife  undertake  that  any  wool,  wool-fells,  wool-flocks,  mortlings, 
fliortlings,  cruels,  worfled,  woollen  and  bay  yarn,  mattreffes,  and  beds 
fluffed  with  combed  wool,  or  wool  fit  for  combing,  fhall  be  conveyed  to  any 
parts  beyond  the  feas,  from  any  port  of  Great-Britain,  or  Ireland,  or  in 
purfuance  of  fuch  infurance  or  agreement  deliver  or  caufe  to  be  delivered  any 

7  I  of 


6o6  W  RECK. 

of  the  faid  goods  in  parts  beyond  the  feas,  fuch  perfons  and  all  their  affiftants  fiiall 
for  every  o^e  nee  /of cit  500I.  to  the  ufe  of  the  informer  over  and  above  all  other 

penalties. S.  30.   All  perfons  who  fhall  pay  or  agree  to  pay  any  money  for 

fuch  infurance,  {hall  for  eveiy  offence  forfeit  r^oo\. S.31.  The  infurer,  infu- 

red,  conveyor,  or  manager  of  fuch  fraud,  within  fix  months  after,  firft  giving 
notice  thereof  to  the  commiflioners  of  the  cuftoms,  fo  as  the  perfons  concerned 
with  him  be  convifted,  fhall  be  difcharged  of  the  penalties,  and  alfo  have  the 
whole  forfeiture  impofed  on  the  other  parties  ;  the  infurer  fo  difcovering  (hall 
retain  the  infurance  money  ;  and  the  infured  giving  fuch  notice  (hall  receive 
back  the  premium,  or  if  it  is  not  paid  fhall  be  indemnified   from  paying  it; 

and  every  fuch  infurance  fhall  be  void. S.  32.  Penalties  and  forfeitures  to 

be  fued  for  by  aftion  of  debt,  &c.  in  the  name  of  the  attorney-general,  or  any 

officer  of  the  cuftoms,  excife,  or  fait  duties. S.  33.  Such  goods  fo  infured, 

being  unknown  to  the  infurers,  the  policies  thereon,  and  all  policies  on  JJiips 
which  have  on  board  fuch  goods,  fhall  be  void,  notwithflanding  any  words 
therein,  and  no  lofs  or  premium  fhall  be  recovered  from  the  infurer. 

3.  By  Stat.  20  Geo.  3.   c.  6. — So  much  of  the  above  and  former  a6ts  as 
reflrain  the  exportation  of  woollen  manufaftures  from  Ireland,  are  repealed. 

4.  Sz-E.  Average  Commodity,  Illegality,  Ireland,  Mijlake,  Prohibited  Goods, 

WRECK. 

1.  T  "T  TRECK  means  the  ruins  of  a  fliip  which  has  been  flranded  or  daflied 

»   '      to  pieces  on  a  fhelf,   rock,   or  lee  fliore,  by  tempeftuous  weather. 

■ — Falc.  Mar.  DiB, 

2.     A  BRANCH  of  the  king's  maritime  revenue  is  that  oi^Jliipwrecks  ;  which 
are  alfo  declared  to  be  the  king's  property  by  the  prerogative  ftatute  17  Edw. 

2.  c.  11.  and  were  fo,  long  before,  at  the  common  law.  It  is  worthy  obfer- 
vation,  how  greatly  the  law  of  wrecks  has  been  altered,  and  the  rigour  of  it 
gradually  foftened,  in  favour  of  the  diftrefifed  proprietors.  Wreck,  by  the 
ancient  common  law,  was  where  any  fhip  was  loft  at  fea,  and  the  goods  or 
cargo  were  thrown  upon  the  land ;  in  which  cafe  thefe  goods,  fo  wrecked, 
were  adjudged  to  belong  to  the  king :  for  it  was  held  that,  by  the  lofs  of 
the  fhip,  all  property  was  gone  out  of  the  original  owner : — but  this  was 
undoubtedly  adding  forrow  to  forrow,  and  was  confonant  neither  to  reafon 
nor  humanity:  wherefore  it  was  firft  ordained  by  king  Henry  I.  that  if  any 
perfon  efcaped  alive  out  of  the  ftiip  it  fhould  be  no  wreck  ;  and  afterwards 
king  Henry  II,  by  his  charter,  declared,  that  if  on  the  coafts  of  either 
England,  Poitlou,  Oleron,  or  Gafcony,  any  fhip  fhould  be  diftrcfled,  and 
either  man  or  bcaft  fliould  efcape  or  be  found  therein  alive,  the  goods  fhould 
remain  to  the  owners,  if  tliey  claimed  them  within  three  months;  but 
otherwife  fhould  be  efteemed  a  wreck,  and  fliould  belong  to  the  king,  or 

other 


WRECK.  60; 

other  lord  of  the  franchife.  This  was  again  confirmed  with  improvements  by- 
king  Richard  the  firft:  who,  in  the  fecond  year  of  his  reign,  not  only  eftablilhed 
thefe  conceffions,  by  ordaining  that  the  owner,  if  he  was  fiiipwrecked  and 
efcaped,  "  omnes  res  fiias  liberas  ct  guietas  haberet"  but  alfo  that,  if  he 
perifhed,  his  children,  or  in  default  of  them  his  brethren  and  fillers,  fliould 
retain  the  property ;  and,  in  default  of  brother  or  filler,  then  the  goods 
fhould  remain  to  the  king  : — and  the  law  fo  long  after  as  the  reign  of  Henry 
ni.  feems  ftill  to  have  been  guided  by  the  fame  equitable  provifions  :  for  then, 
if  a  dog  (for  inftance)  efcaped,  by  which  the  owner  might  be  difcovered,  or 
if  any  certain  viark  were  fet  on  the  goods,  by  which  they  might  be  known 
again,  it  was  held  to  be  no  wreck :  and  this  is  certainly  moll  agreeable  to  reafon ; 
the  rational  claim  of  the  king  being  only  founded  upon  this,  that  the  true 
owner  cannot  be  afcertained.  But  afterwards,  in  the  ftatute  of  Wellminfler 
the  firfl  (3  Edxo.  1.  c.  4.)  the  law  is  laid  down  more  agreeable  to  the  charter 
of  king  Henry  the  fecond  :  and  upon  that  ftatute  hath  ftood  the  legal  do6lrine 
of  wrecks  to  the  prefent  time  : — it  enafts,  that  if  any  live  thing  efcape  (a 
■man,  a  cat,  or  a  dog  ;  which,  as  in  Brafton,  are  only  put  for  examples)  in 
this  cafe,  and,  as  it  feems,  in  this  cafe  only,  it  is  clearly  not  a  legal  wreck  :  but 
ihe  fheriff  of  the  county  is  bound  to  keep  the  goods  a  year  and  a  day  (as  in 
France  for  one  year,  agreeably  to  the  maritime  laws  of  Oleron,  and  in 
Holland  for  a  year  and  an  half)  that  if  any  man  can  prove  a  property  in 
them,  either  in  his  own  right  or  by  right  of  reprefeniation,  they  fliall  be 
reftored  to  him  without  delay  :  but,  if  no  fuch  property  be  proved  within 
that  time,  they  then  fhall  be  the  king's.  If  the  goods  are  of  a  perifliable 
nature,  the  ftieriff  may  fell  them,  and  the  money  fliall  be  liable  in  their  ftead. 
This  revenue  of  wrecks  is  frequently  granted  out  tf^  lords  of  manors,  as 
a  royal  franchife  ;  and  if  any  one  be  thus  entitled  to  wrecks  in  his  own  land, 
and  the  king's  goods  are  wrecked  thereon,  the  king  may  claim  them  at  any 
time,  even  after  the  year  and  day. — i  Black.  Comm.  290. 

3.  It  is  to  be  obferved,  that,  in  order  to  conftitute  a  legal  wreck,  the 
goods  mud  come  to  land:  if  they  continue  at  fea,  the  law  diftinguiflies  them 
by  the  barbarous  and  uncouth  appellations  oS.  jetfam,  Jlotfam,  and  ligan. 
Jctfam  is  where  goods  are  caft  into  the  fea,  and  there  fmk  and  remain  under 
water:  flotfam  is  where  they  continue  fwimming  on  the  furface  of  the  waves : 
ligan  is  where  they  are  funk  in  the  fea,  but  tied  to  a  cork  or  buoy,  in  order 
to  be  found  again :  thefe  are  alfo  the  king's,  if  no  owner  appears  to  claim 
them  ;  but,  if  any  owner  appears,  he  is  entitled  to  recover  the  polfelhon  :  for 
even  if  they  be  caft  over-board,  without  any  mark  or  buoy,  in  order  to 
lighten  the  fliip,  the  owner  is  not  by  this  aft  of  necelfity  conftrucd  to  have 
renounced  his  property :  much  lefs  can  things  ligan  be  fuppofcd  to  be 
abandoned,  fmce  the  owner  has  done  all  in  his  power,  to  aflert  and  retain 
his  property.  Thefe  three  are  therefore  accounted  fo  far  a  diftinft  thing 
from  the  former,  that  by  the  king's  grant  to  a  man  of  wrecks,  things  jetfam, 
flotfam,  and  ligan,  will  not  pafs. — Ibid.  292, 

4.    Wrecks, 


6o8  W  R  E  C  K. 

4.     Wrecks,  in  their  legal  acceptation,  are  at  prefent  not  very  freiquent: 
it  rarelv  happening  that  every  living  creature  on  board  periflies ;    and  if  any 
fhould  furvive,  it  is  a  very  great  chance,  fmce  the  improvement  of  commerce, 
navigation,   and    correfpondence,  but  the  owner  will  be  able  to   alTert  his 
property  within  the  year  and  day  limited  by  law :    and  in  order  to  preferve 
this  property  entire  for  him,  and  if  pofuble  to  prevent  wrecks  at  all,  our  laws 
have  made  many  very  humane  regulations ;  in  a  fpirit  quite  oppofite  to  thofe 
favage  laws,  which  formerly  prevailed  in  all  the  northern  regions  of  Europe, 
and  a  few  years  ago  were  (lill  faid  to  fubfift  on  the  coails  of  the  Baltic  fea, 
permitting   the    inhabitants  to  feize  on   whatever  they  could  get  as  lawful 
prize :  or,  as  an  author  of  their  own  exprelles  it,  "  in  naufragorum  miferia 
et  calamitate  tanquam   vultures   ad   pra^dam  currere :" — for   by  the   (latute 
2  Edzo.  2-  c.  13.  "  if  any  fhip  be  loft  on  the  fliore,  and  the  goods  come  to 
land  (fo  as  it  be  not  legal  wreck)   they  ftiall   be   prefently  delivered  to  the 
merchants,  they  paying  only  a  reafonable   reward  to  thofe  that  favcd  and 
preferved  them  ;"  which  is  entitled /alvage :  alfo  by  the  common  law,  if  any 
perfons   (other  than  the  fheriff)  take  any  goods  fo  call  on  Ihore,    which  are 
not  legal  wreck,  the  owners  might  have   a  commiftion  to  enquire  and   find 
them  out,  and  compel  them  to  make  reftitution. — And  by  ftat.  12  Anne,  ft.  2. 
c.  18.  confirmed  by  4  Geo.  1.  c.  12.  in  order  to  affift  the  diftrefled,  and  prevent 
the  fcandalous  illegal  praftices  on  fome  of  our  fea-coafts  (too  fmiilar  to  thofe 
on  the  Baltic)  it  is  enafied,  that  all  head  officers  and  others  of  towns  near  the 
fea  (liall,  upon  application  made  to  them,  fummon  as  many  hands  as  are 
neceflary,  and  fend  them  to  the  relief  of  any  ftiip   in  diftrefs,  on  forfeiture  of 
lool.  and,  in  cafe  of  afiiftance  given,  falvage  fhall  be  paid  by  the  owners,  to 
be  affefled  by  three  neighbouring  juftices :  all  perfons  that  fecrete  any  goods 
fliall  forfeit  their  treble   value  :    and  if  they  wilfully  do  any  aft  whereby  the 
fliip   is  loft  or  deftroyed,  by  making  holes  in  her,  ftealing  her  pumps,  or 
otherwife,  they  are  guilty  of  felony,  without  benefit  of  clergy. — Laftly,  by  the 
ftat.   26  Geo.  2.  c.  19.  plundering   any  veftel  either  in   diftrefs,  or  wrecked, 
and  whether  any  living  creature  be  on  board  or  not  (for,  whether  wreck  or 
otherwife,  it  is  clearly  not  the  property  of  the  populace)  fuch  plundering,  I 
fav,  or  preventing  the  efcape  of  any  perfon  that  endeavours  to  fave  his  life, 
or  wounding  him  with  intent  to  deftroy  him,  or  putting  out  falfe  lights  in 
order  to  bring  any  veftel  into  danger,  are  all  declared  to  be  capital  felonies ; 
in  like  manner  as  the  deftroying  trees,  fteeples,  or  other  ftated  /ea  marks,  is 
puniflied  by  the  fiat.  8  Eliz.  c.  13.  with  a  forfeiture  of  lOoI.  or  outlawry. — 
Moreover,  by  the  ftat.  of  Geo.  2.  pilfering  any  goods  caft  aftiore,  is  declared 
to  be  petty  larceny ;  and  many  other  falutary  regulations  are  made,  for  the 
more  efte6luallv  prefcrving  (hips  of  any  nation  in  diftrefs. — Il^id.  293. 

5.  Bv  the  civil  lazo,  to  deftroy  perfons  fliipwrecked,  or  prevent  their 
faving  the  ftiip,  is  capital :  and  to  fteal  even  a  plank  from  a  veftel  in  diftrefs, 
or  wrecked,  makes  the  party  liable  to  anfwer  for  the  whole  fliip  and  cargo 
(Ff.  47.  9.  3).  The  laws  alfo  of  the  Wifigoths,  and  the  moft  early  Neapo- 
litan conftitutions.  puniflied  with  the  utmoft  feverity  all  thofe  who  neglefled 

to 


WRECK.  G09 

to  affift  any  fliip  in  dilhefs,  or  plundered  any  goods  call  on  Hiotq.— Linden- 
brog.  Cod.  LL.  antiqu.  146,  715. 

6.  In  matters  of  wreck  it  is  obferved,  that  there  is,  as  it  were,  a  contraft 
between  the  perfons  that  have  loft  their  goods  by  fuch  misfortune,  and  thofe 
upon  whofe  lands  the  goods  and  merchandife  are  driven,  that  the  fame'  be 
reftored  to  them,  or  thofe  that  claim  under  them :  and  therefore  by  the  civil 
law,  no  man  fliall  meddle  with  fuch  goods  as  are  wrecked,  nor  fliall  they  be 
feized  by  the  king  or  any  other  by  virtue  of  his  grant  or  royal  privilege ; 
for  that  fuch  goods  being  caft  cm.  land  and  recovered  out  of  the  fca,  remain 
ftill  his  who  was  the  firft  owner  thereof,  and  fiiall  go  to  him  or  his  fucceffor; 
and  if  it  be  proved  that  any  thing  be  ftolen  out  of  the  wreck,  the  takers  fhall 
be  deemed  robbers. — Here  we  find  what  is  worthy  to  be  followed  and.  imitated 
in  all  trading  countries ;  and  the  reafon  why  the  laws  were  fo  ftri£lly  declared 
by  the  Romans  was,  becaufe  by  the  R/iodian  laws,  if  any  fliip  had  become 
wreck,  though  all  the  perfons  were  faved  and  alive,  yet  the  (liip  and  goods 
became  feizable  by  the  lords :  but  the  fame  being  barbarous  and  inhuman, 
it  was  afterwards  repealed  and  abrogated,  as  well  by  thofe  emperors  in  their 
territories,  as  here  in  England ;  and  firft  by  the  naval  law  of  Oleron,  which 
provided  in  fuch  misfortune  that  if  the  merchant  or  mariners,  or  any  of 
them  came  fafe  to  land,  it  was  not  to  be  accounted  wreck. — And  the  emperor 
Conftantine  the  Great  fays,  "if  any  fliip  at  any  time  by  fiiipwreck  be  driven 
unto  the  ftore,  or  touch  at  any  land,  let  the  owner  have  it,  and  let  not  my 
exchequer  meddle  with  it;  for  what  right  have  I  in  another  man's  calamity, 
that  I  fliould  hunt  after  gain  in  fuch  a  woful  cafe.'^'" — Monf.  Valin,  however, 
in  vol.  2.  p.  580,  of  his  Nouveau  Commentaire  fur  1'  Ordon.de  Louis  XIV.  du 
Mois  d'  Aout  1681,  following  the  remark  of  Godefroi,  and  other  learned 
writers,  gives  the  honour  of  the  abovementioned  law  to  the  ^m^txox  Antoniyius. 

7,  By  Stat.  19  Geo.  2.  c.  22.  f.  3. — As  foon  as  any  ftiip  or  veftel  ht  funk, 
Jlranded,  or  run  onjhore,  in  any  harbour,  port,  channel,  or  navigable  river,  or 

be  drove  in,  or  be  there  in  a  ruinous  condition  and  permitted  to  remain  there, 
and  the  owner  or  commander  or  any  other  perfon  by  their  order  or  aftent, 
begin  to  carry  away  any  of  the  tackle,  or  if  there  be  not  any  perfon  to  take 
care  of  the  laid  fliip,  it  ftiall  be  lawful  for  any  juftice  of  peace  for  the  county 
or  place,  upon  information,  to  fummon,  or  iffue  out  his  warrant  to  bring 
before  him,  the  owner  or  perfon  pretending  to  have  the  command  over  fuch 
(liip,  and  upon  his  appearance  or  default  to  examine  the  matter ;  and  in  cafe 
fuch  juftice  find  any  perfon  guilty  of  fuch  offence,  he  fliall  iffue  his  warrant 
for  feizing  and  removing  fuch  fliip  and  tackle ;  and  if  the  owner  or  fuch 
other  perion  fliall  not  within  five  days  give  fecurity,  according  to  the 
approbation  of  fuch  juftice  to  clear  the  harbour,  &c,  of  fuch  veftel  and  of 
all  wreck  and  parrs  belonging  to  the  fame,  and  pay  the  charges  of  feizing, 
removing  and  difpofing  of  fuch  fhip,  tackle,  or  furniture,  dicn  to  caufe  the 
hulk  or  tackle  to  be  fold,  and  with  the  money  arifing  by  fuch  fale  to  pay  the 
charges  of  clsaring  the  harbour  or  place  where  fuch  fliip  fliall  lie,  and  alfo  the 

7  K  charges 


6io  WRITTEN       CLAUSE. 

charges  of  feizing,  removing,  and  felling  fuch  fliip  and  tackle,  rendering  the 

overplus  to  the  owner  of  fuch  manor  where  the  fame  fhall  happen. S.  6. 

None  of  the  diftrelTes  made  by  virtue  of  this  acl  fhall  be  fold  till  after  five 
days  from  the  day  of  making  fuch  diftrefles ;  but  it  fhall  be  lawful  for  the 
perfons  convicled  any  time  before  the  expiration  of  the  faid  five  days,  to 
redeem  fuch  diftrefs  by  payment  of  the  money  for  which  the  fame  was  made 
to  the  ufes  of  this  aft,  with  cofls  of  making  and  detaining  fuch  diRrefles. 

8.  Case. — The  plaintiff  had  fundry  hogfheads  of  tallow  aboard  the  fhip 
Hillhoufe,  Will.  Penny,  from  Cork  to  Liverpool ;  which  veffel  failed  from 
Cork  in  November  or  December  1770,  and  was  never  after  heard  of:  divers 
of  the  goods,  being  part  of  her  cargo,  drove  on  fhore,  and  were  in  the  poflefTion 
of  different  perfons;  all  of  whom  delivered  them  up  to  the  proprietors  upon 
demand,  on  a  falvage  being  paid  to  them,  except  the  defendant ;  who  had 
got  three  hogfheads  of  the  abovementioned  tallow,  value  30I.  per  hogfhead, 
and  infifled  "  that  as  no  living  creature  had  come  alive  from  the  fhip  to  the 
fhore,  the  fhip  and  goods  were  a  wreck,    and  became   the  property  of  the 

crown  or  it's  grantee   (under  whom  Davis  atled)  by  flat.  r^Edzo.  1.   c.  4." 

Lord  Mansfield  faid,  there  is  no  ground  for  the  diflinftion  (on  the  conflruftion 
of  the  flat.  3.  Edw.  1.  c.  4.)  that  the  goods  are  forfeited,  becaufe  no  live 
animal  efcaped ;  the  very  idea  is  fhocking : — though  this  is  one  medium  of 
proof  of  ownerfliip,  yet  other  proof  may  be  brought ;  particularly  the  marks 
upon  the  goods,  provided  it  be  within  a  year  and  a  day : — the  flat,  of  Weflm. 
1.  3  Edzc.  1.  c.  4.  was  declaratory  of  the  common  law. — 5  Burr.  2732.— 
1  June  1771. — Ilamelton  &  Smyth  v.  Davis. 

9.  See  Abandonment,  Admiralty  &  Admiralty-Court,  Barratry,  Cinque- 
Ports,  Claim,  Dijirefs,  Jctfon,  Reclaim,  Salvage,  Seamen,  Shipwreck, 
Stranding,  Total  Lofs. 


WRITTEN         CLAUSE. 

1.  TJRINTE  D  forms  of  contrafts,  adapted  to  the  nature  of  the  various 
-■"  tranfaftions  of  commercial  and  maritime  affairs,  have  always  been  of 
great  utility  in  facilitating  the  difpatch  of  bufinefs,  in  ever)'  country :  and 
for  this  reafon  printed  forms  of  policies  of  infurance,  with  blank  fpaces  for 
inferting  with  the  pen  fuch  fpecial  or  extraordinary  claufes  and  conditions  as 
may  be  flipulated  between  the  parties,  are  more  particularly  neceffary,  on 
account  of  the  expedition  which  is  frequently  requifite  in  making  infurances, 
and  the  hurry  and  precipitancy  with  which  this  bufinefs  is  generally  performed. 

It  is  therefore  to  be  wiflied,   that  the  printed  form  of  the  policies  now 

ufcd  in  England  (which  varies  but  little  from  that  which  was  common  here 
200  years  ago)  were,  by  a  committee  of  merchants  and  infurers  of  London, 
or  by  public  authority,  revifed,  improved,  and  rendered  more  intelligible  to 
the  generality  of  perfons  who  are  neceffarily  concerned  in  tkis  important 

contra6l ; 


Written      clause.         gh 

contraft ;  notwithftanding  the  true  conjlruclion  of  it's  claufes  and  terms,  as 
hitherto  expreffed,  is  from  long  ufage,  and  numerous  decifions  of  our  courts, 
fufficiently  well    underftood   by  men   of  experience,    who   have   taken  the 

trouble  to  inform  themfelves    in  that  refpeft. Whenever  fuch  correftion 

and  improvement  of  the  printed  form  of  our  policies  fliall  be  undertaken, 
there  might  be  introduced  a  few  additional  claufes  and  conditions,  accurately 
expreffcd  (with  proper  blanks)  applicable  to  the  general  and  ufual  occurrences 
in  time  of  war,  with  regard  efpecially  to  the  form  of  exprelfing  warranties, 
returns  for  convoy,  &c.  in  order  to  prevent  furprife,  and  the  mifunder- 
flandings  and  difputes  which  very  frequently  arife  from  the  inconfiderate, 
and  too  often  intentional  ambiguity  and  intricacy  of  the  terms,  in  which  fuch 
claufes  and  conditions  are  exprefl'cd  in  writing ;  with  the  view  that  thofe  who 
fo  exprefs  them,  may  be  at  liberty  afterwards  to  put  their  own  conflruftion 
upon  them  ;  feveral  inftances  of  which,  and  their  bad  confequences,  the 
reader  will  find  adverted  to  in  their  proper  places,  under  the  rcfpe6live  titles 
referred  to  in  the  next  page,  and  other  parts  of  this  work. 

2.  Amongst  various  other  examples  of  the  kind  above  intimated,  I  have 
lately  feen  in  fome  policies,  to  which  there  were  feveral  fubfcriptions,  and 
where  the  premium  inferted  was  25  guineas  per  cent,  a  condition  exprelfed 
in  thefe  words,   viz.   "  to  return  15I.  percent,   if  the  fhip  7oznj  convoy,   or 

arrives." The    infiirers,   in   this    inllance,  meant  to  make  the  return  of 

premium  only  in  cafe  the  fhip  departed  with  convoy  for  the  voyage,  and 
arrived  (according  to  the  ufual  way  of  exprelfing  it) — but  the  infured  meant 
quite  otherwife,  i.  e.  to  have  the  return,  if  the  (hip  merely  j'omei  any  convoy, 
however  partial,  although  foon  afterwards  (lie  might  be  loft ;  or,  in  the 
cafe  of  her  arriving,  whether  flie  fhould  have  joined  or  failed  with  any  convoy 

or  not. There  are   infurcds  and  brokers  who  ftudy  and  are  conftantly 

exercifing  fuch  artful  and  entrapping  modes  of  expreffion  in  written  claufes : 
and  there  are  leading  underwriters  who,  chiefly  attentive  to  the  number  of 
the  policies  which  they  fubfcribe,  either  do  not  read,  or  do  not  perceive  the 
defign  and  tendency  of  claufes  fo  exprefled;  and  many  other  infurers  who 
follow  implicitly  fuch  leaders  : — and  when,  in  the  event,  they  find  themfelves 
impofed  upon,  by  demands  of  returns,  averages,  and  lofles,  by  virtue  of  the 
vague  and  catching  manner,  which  is  of  late  fo  prevalent  in  the  wording  of 
written  claufes,  they  exclaim,  that  they  did  not  underftand  there  was  any 
thing  unufual  in  fuch  or  fuch  a  claufe ! — but  contra  fcriptum  tejlimoniuvi, 
tejtimonium  non  fcriptum  non  fertur. 

Q.  As  the  written  claufes  and  conditions  inferted  in  policies  often  control, 
eontradia,  or  differ  from  the  printed  words,  it  behoves  the  infurcr  who 
firft  underwrites  them,  as  well  with  regard  to  thofe  who  are  to  fubfcribe 
after  him  as  himfelf,  to  be  attentive  to  the  true  import  of  what  is  written ; 
and  it  equally  concerns  the  infured  to  be  careful  in  expreffing  his  own 
meaning  with  fairnefs  and  precifion,  left  by  duplicity  or  inaccuracy  he  defeat 

his  own  purpofe. 

4.     Whoever 


6i2  WRITTEN        CLAUSE. 

4.  Whoever  is  defirous  in  any  particular  cafe  to  add  one,  or  more 
conditions  or  fpecial  reftriftions  to  the  policies  over  and  above  the  ufual 
obligation  contained  therein,  mull  take  care  that  the  fame  be  exprefsly 
inferted  in  the  policy,  before  it  is  figned  :  and  fuch  claufes,  added  in  zoriting, 
if  the  alTurer  by  his  underwriting  agrees  and  confents  thereunto,  fliall  not 
only  be  deemed  equally  valid  with  every  thing  elfe  contained  in  the  policy, 
but  fhall  even  have  the  preference  to  what  is  printed,  in  fo  far  as  it  differs 
from,  or  contraditls  the  fame. — Ordiii.  of  Ham/?. 

5,  See  Prelim.  Difc.  10,  27,  29,  45,  50  to  52,  66,  84.  Alteration  of 
Policy  Voyage  or  Rifque,  Blank,  Broker,  Commencement  of  Voyage  or  Rifgue, 
ConfiruEtion,  Contrail,  Convoy,  Deviation,  Intendment,  Mi/lake,  Particular- 
Average,  Policy,  Return,  Ship  or  Ships,  Touching,  Ufage,  Valuation,  Wager, 
War,  Warranty. 


I  N  D  E  X. 


N       D       E       X. 


A, 


.BANDONMENT     -    -    -     Page 

ABATEMENT 

ACCIDENT     - 

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ADJUSTMENT 

ADMIRALTY  and  Admiralty-Court   - 

AFFIDAVIT 

AFRICA 

AGENT      --------- 

AGREEMENT     

AGROUND     

ALGIERS  -     - 

ALIEN        -..------ 

ALTERATION  OF   POLICY,     )  _ 
VOYAGE,  OR  RISQUE     -     -\  ' 

AMERICA 

AMICABLE  JUDICATORY  or  Court 
AMICABLE  SOCIETY      -     -     -     - 

AMSTERDAM 

ANCHOR  -     - 

AN.TWERP 

APPEAL     

ARBITRATION  AND  AWARD      - 

ASHORE   

ASSIGNMENT 

ASSOCIATION 

AT  AND  FROM 

AVERAGE      


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20 

21 

23 

23 

24 

24 

24 


B 


BLANK     -    - 
BOAT       -     - 
BOTTOiMRY 
BOUNTY       - 


BAIL  -  -  -  - 
BANKRUPT  -  - 
BARBARY  -  - 
BARGAIN  -  - 
BARRATRY  -  - 
BARTER  -  -  - 
BILBOA  -  -  - 
BILL  OF  LADING 
BILL  OF  SALE  - 
BISCUIT     -     -     - 


Page  43 

-  -     44 

-  -     44 

-  -     61 


BROKER 61 

BUILT 68 


CABLE     ------- 

CADIZ      - 

CANCELLING       -     -     -     - 

CAPTIVES    ------ 

CAPTURE     ------ 

CASES  ADJUDGED    -     -     - 

CATTLE       

CERTIFICATE       -     -     -     - 
CHAMBER  OF  ASSURANCE 


32 
32 
33 
33 
35 
42 

43 
43 
43 
43 


69 
70 

71 

72 

7B 

88 

89 

89 


lOI 


CHANCERY 9^ 

CHARTER-PARTY 96 

CINQUE  PORTS 96 

CIVIL  LAW 97 

CLAIM     -     - 98 

CLAUSE  - 99 

COLONY 99 

COMMENCEMENT  OF  VOYAGE; 

OR  RISQUE        " 

COMMISSION  - -  104 

COMMISSION  OF  MARQUE  -     -   104 
COMMODITY        ---"'---  104 

COMMUNITY 107 

COMPANY    - loS 

CONCEALMENT 113 

CONDEMNATION 124 

CONFISCATION 125 

CONSTRUCTION 126 

CONSUL        126 

CONTRABAND 127 

CONTRACT 130 

CONTRIBUTION 130 

CONVOY 138 

COPENHAGEN 143 

CORDAGE 145 

CORN 145 

COURT-MERCHANT      -     -     -     -  148 

COURT 


N 


D 


Page 


150 


COURT  OF  POLICIES   of 

AfTurance 

CRUISE  AND  CRUISING    -     -     -  154 

CRUISER 156 

CUSTOM 157 

CUTTING 157 

D 

DAMAGE      --------   159 

DATE 164 

DECEIT  -     - 164 

DECK        -     -     -     - 165 

DECLARATION    ------   165 

DELIVERING  PORT      -     -     -     -   166 

DEMURRAGE  -------   166 

DEPARTURE 166 

DESTINATION 1^7 

DETENTION    -------  167 

DEVIATION 168 

DISCHARGE 180 

DISCOUNT  --------   180 

DISPUTE 180 

DISTRESS 180 

DOCK       -     -     -     -     -----     -  181 

DOCUMENT      -     - 182 

DOLLAR       -     - 183 

DOUBLETNSURANCE  -     -     -     -  183 

DRyUVBACK 189 

DROIT  OF  ADMIRALTY   -     -     -  189 
DUTIES -     -     .     -  189 


EAST-INDIAandEaR  IndiaCompany   190 

EAST-INDIA  SHIPS 190 

EMBARGO    --------  193 

EMBEZZLEMENT 194 

END  OF  VOYAGE  OR  RISQUE  -  195 

ENEMY    - ^^1 

EQUITABLE  SOCIETY       -     -     -  202 

EQUITY  -     -     - 209 

ERASEMENT 209 

ESTLMATE  - 209 

EVENT 210 

EVIDENCE  - 210 


FACTOR  - 212 

FIRE 212 

FISH 221 

FISHERIES 222 


E  X. 

FLAG Pagt  222 

FLAX 222 

FLOTA 222 

FLOUR 223 

FOREIGN  ADJUSTMENT       -     -  223 

FOREIGN  COURT 223 

FOREIGN  OWNER 224 

FOREIGN  SHIPS -  225 

FRANCE 225 

FRAUD 225 

FREEDOM  OF  NAVIGATION     -  237 

FREE  GOODS  AND  FREE  SHIPS  243 

FREE  OF  AVERAGE      -     -     -     -  244 

FREIGHT  AND  FREIGHTER      -  244 

FRIENDLY   SOCIETY   FIRE-   ) 

c  -  2/51 

OFFICE \       ^ 

FRUIT 251 

G 

GAMING  INSURANCE  -     -     -     .  252 
GENERAL  OR  GROSS  AVERAGE  252 

GOODS 260 

GRAIN 264 

GREENLAND 264- 

GUARANTEE 266 

H 

HAMBURGH     - ,  -     -     -'    -     -     -  267 
HAND-IN-HAND  FIRE-OFFICE     269 

HEMP 271 

HERRING-FISHERY       ...     -  273 

HOSTAGE 274 

HOSTILITY 275 

HYPOTHECATION 277 

I 

ILLEGALITY 279 

INDEMNITY 279 

INSOLVENCY 279 

INSUFFICIENCY 279 

INSURANCE 289 

INSURED 293 

INSURER 294 

INSURRECTION 296 

INTELLIGENCE 296 

INTENDMENT,     INTENT,  i 

'  c     -  299 

INTENTION     -     -     -     -    S 
INTEREST 300 

INTEREST  OF  MONEY     -     -     -  310 
INTEREST  OR  NO  INTEREST  -  311 

INVASION 


N 


D 


INVASION 
IRELAND 


J 


JETSON  OR  JETTISON 
JURY 


Page  312 
-     -  312 


314 

V7 


K 

KING 317 

KONIXGSBERG 317 


LANDING -     -  318 

LAW,  LAWSUIT,  &  LAWYERS  -  318 
LAW  MERCHANT,   OR  LEX  i 

MERCATORIA  -     -     -     -     \    '  ^"^^ 

LAW  OF  NATIONS 321 

LEAKAGE    - 326 

LEGHORN 326 

LETTER  OF  MARQUE       -     -     -  327 
LIGHTER     -.----.-  328 

-  330 

-  330 

-  340 


LIMITATION    - 
LIVES       -     -     - 
LOADING   PORT 
LONDON-ASSURANCE 
COMPANY     - 

LOSS -     - 

LOST  OR  NOT  LOST  - 
LOTTERY    


"■-I 


-  340 


343 
345 
345 


M 


MARINER 348 

MARITIME  COURT 348 

MARITIME  LAW       -----  349 

MARKET 349 

MASQUED  SHIP  or  Property   -     -  355 

MASTER 359 

MISREPRESENTATION     -     -     -  363 

MISTAKE 363 

MOORING 367 

MOROCCO 367 

MUTINY 367 

N 

NAME 368 

NAVIGATION   and  Navigation  AQ   368 

NECESSITY 370 

NEGLIGENCE 370 

NEUTRAL  SHIP  OR  PROPERTY  372 
NEWFOUNDLAND 373 


E  X. 

NEW  TRIAL Tage  375 

NOTICE 376 

O 

OLERON       »     -     - 377 

ORDER ^77 

ORDINANCE 380 

OVER-LOADING 382 

OUT-FIT  -     - 382 

OUT-PORTS      -     -     -     -     -     -     -  383 

OWNER 383 

P 

PAROL  AGREEMENT  -  -  -  -  384 
PAROL  EVIDENCE  -----  384 
PARTICULAR  AVERAGE  -     -     -  384 

PARTNERSHIP 386 

PASS  OR  PASSPORT     -     -     -     .  387 

PAYMENT 388 

PEASE  .--.----.  389 
PERISHABLE  COMMODITIES  -  390 

PETTY  AVERAGE 394 

PILAW 394 

PILOT  AND  PILOTAGE  -  -  -  395 
PIRACY  AND  PIRATE       -     -     -  397 

POLICY 400 

PRECEDENT 404 

PREMIUM 406 

PRIOR   INSURANCE      ....  409 

PRIVATEER 412 

PRIZE 422 

PROFIT 426 

PROHIBITED  GOODS  -     -     -     .  427 

PROOF 430 

PROPERTY  AND  PROPRIETOR  432 

PROTEST 432 

PROVISIONS 433 

Q 

QUARANTINE 434 

R 

RANSOM 435 

RECAPTURE 442 

RECLAIM 452 

REGISTER 453 

REGULATION 454 

REINSURANCE 456 

RELADING 458 

REPAIR 459 

REPRISAL 


N 


D 


X. 


REPRISAL   ------    Pcge  462 

RESPONDENTIA-     -     -     -     -     -  463 

RESTITUTION      - 4^7 

...     -  468 

.     -     -     -  469 

-  -     -  -  474 

-  -     -  -  475 

-  -     -  -  475 

-  -     -  -  476 
...  -  477 


RESTRAINT 

RETURN       

RHODIAN  LAWS      -     -     - 

RIGGING 

RISQUE 

ROBBERY     ------ 

ROUEN -     - 

ROYAL-EXCHANGE  ASSU- 
RANCE-COMPANY     -     - 
RUNNING  FOUL      -     -     - 


-  478 


A79 


SAILING   ORDERS 487 

SAILORS'  WAGES 4^7 

SAILS  ----------  4^7 

SALT  -     - 487 

SALVAGE -     -     -  488 

SCOTLAND 501 

SEA 502 

SEA  LAWS 504 

SEAMEN -    -  504 

SEASON 505 

SEA- WORTHY 506 

SEIZURE       -     -     - 508 

SHIP 510 

SHIP  OR   SHIPS 517 

SHIPS  OF  WAR 522 

SHIPWRECK 523 

SHORT  INTEREST 524 

SLAVES 525 

SMUGGLING 525 

SOCIETY -     -     -  526 

SPAIN 527 

STAMPS 527 

STATUTES 528 

532 
533 
534 
535 
537 
537 


SUN  FIRE-OFFICE 


TENDER   OF  MONEY  - 

THEFT     

TIME 

TOTAL  LOSS  -  -  -  - 
TOUCHING  -  -  -  - 
TRANSFER  -     -     -     -     ^ 

TREATY  

TRIAL 

TRIPOLY 

TRUST  AND   TRUSTEE 

TUNIS 

TURKEY  


STOCKHOLM 

STOCKS    -    -     

STOWAGE 

STRANDED  AND  STRANDING 

SUBJECT ■ 

SUGAR     


Page  538 


542 
543 
544 
545 
548 
550 
550 
553 
553 
553 
556 
557 


U 

UNION  FIRE-OFFICE  - 

UNLESS    - 

UNLOADING    -     -     -     - 
USAGE      


V 


VALUATION 
VERA  CRUZ 
VERDICT  - 
VOYAGE      - 


W 


-  558 

-  559 

-  560 

-  560 


564 
57  » 

573 


WAGER 582 

WAGES    ..-------  587 

WAR 593 

WARRANTY 600 

WASTAGE  --------  601 

WEAR  AND  TEAR 601 

WESTMINSTER  FIRE-OFFICE  -  603 
WHALE  FISHERY    - 
WISBUY  LAWS     -     - 
WITNESS     -     -     -     - 
WOOL  AND  WOOLLEN 
MANUFACTURES 

WRECK 606 

1  WRITTEN  CLAUSE      -    -     -    -  610 


603 
604 
605 


\     -     -60s 


I 


H 


N 


D. 


■ 


'■»».S' 


^^2f> 


.'j^Y 


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